Buss, William G --- "Alexander Meiklejohn, American Constitutional Law, and Australia's Implied Freedom of Political Communication" [2006] FedLawRw 16; (2006) 34(3) Federal Law Review 421
[*] O K Patton Professor of Law, University of Iowa (Yale BA, Harvard LLB). An earlier version of the first third (Part I) of this article was written while I was a Visiting Scholar at the Centre of Comparative Constitutional Studies, University of Melbourne Law School, in 1999 and presented at the 1999 ALTA Conference at Victoria University, Wellington, New Zealand. I wish to thank Professor Cheryl Saunders, Director of the Centre, for her hospitality and that of her colleagues and the staff at the Centre during the very happy months I spent in Melbourne at the Centre. I also wish to thank my Iowa colleagues for their comments on a faculty seminar on the second third of the article (Part II) and Sir Geoffrey Palmer, Dr Adrienne Stone, Professor Kim Rubenstein, and the anonymous referee for comments on the paper in roughly its present form. Finally, I express my gratitude to many Research Assistants, too numerous to mention, for work too extensive to catalogue, during the slow gestation of the paper over several years. The article's flaws that remain are my own, and they are surely fewer because of all this assistance.
[1] Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948) 11 (Declaration of Independence, 1776), 14 (Mayflower compact, 1620), 15 (preamble to the Constitution of the United States, 1787).
[2] [1992] HCA 45; (1992) 177 CLR 106 ('ACTV'). See also Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 ('Nationwide News').
[3] Australian Constitution s 24: 'The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth …'.
[4] Australian Consitution s 7: 'The Senate shall be composed of senators … directly chosen by the people of the State …'.
[5] Australian Constitution s 128: '… the proposed law shall be submitted … to the electors qualified to vote for the election of members of the House of Representatives'.
[6] ACTV [1992] HCA 45; (1992) 177 CLR 106, 137–8. Meiklejohn was not cited, but that is not surprising. Meiklejohn is famous for his theory of free speech and democracy among American civil libertarians, but his basic idea has long been in the public domain. See Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 36, citing Immanuel Kant, On the Old Saw: That May Be Right in Theory But It Won't Work in Practice (E B Ashton trans, 1974 ed) 72 [trans of: Über den Gemeinspruch: Das mag in der Theorie riehtig sein]; Benedict de Spinoza, 'A Theologico–Political Treatise' in A Theologico–Political Treatise and A Political Treatise (R H M Elwes trans, 1951 ed) 1, ch XX [trans of: Tractus Theologico–Politicus]; David Hume, 'Of the Liberty of the Press' in David Hume, Essays: Moral, Political, and Literary (first published 1742, 1889 ed with preliminary dissertations and notes by T H Green and T H Grose) vol 1, 94. In Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 375 n 4, Dr Stone attributed the same idea to Charles Black, Structure and Relationship in Constitutional Law (1969). The acknowledgment of Meiklejohn came later in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 124 (Mason CJ) ('Theophanous'), where Mason CJ noted that '[a] similar view has been advocated by Alexander Meiklejohn.'
[7] See generally 'Symposium: Constitutional Rights for Australia?' [1994] SydLawRw 12; (1994) 16 Sydney Law Review 145, 145–287 (a collection of essays by prominent Australian, and other, constitutional scholars variously supporting or criticising the High Court's discovery of a judicially enforceable implied freedom). Compare Jeffrey Goldsworthy, 'Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue' [1997] MonashULawRw 22; (1997) 23 Monash University Law Review 362, 371–4, with Jeremy Kirk, 'Constitutional Implications (II): Doctrines of Equality and Democracy' [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24, 44–57; Michael Stokes, 'Interpretation and Changes in Constitutional Law; A Reply to Jeffrey Goldsworthy' (1996) 21 Australian Journal of Legal Philosophy 1.
[8] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').
[9] Sir Owen Dixon, 'The Law and the Constitution' (lecture, delivered in Melbourne, 1935) in Judge Severin Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) ('Jesting Pilate') 38, 44. Jesting Pilate is a collection of Dixon lectures and essays delivered or written over a span of 32 years, from 1933–1964. One bit of wished–for originality might have eschewed separate State and federal jurisdictions: see at 54. See also Sir Owen Dixon, 'Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952' in Jesting Pilate 245, 249.
[10] Official Record of the Debates of the Australasian Federal Convention, Volumes I–V (as reprinted, 1986, Gregory Craven, editor), passim.
[11] In an on–going study of the Australian convention debates, I have found that nearly every convention day contains some American reference, often extensive and often central to the issues before the convention.
[12] As they, like their American counterparts, all were. See Deborah Cass and Kim Rubenstein, 'Representation/s of Women in the Australian Constitutional System' [1995] AdelLawRw 2; (1995) 17 Adelaide Law Review 3, 28–9.
[13] See John Andrew La Nauze, The Making of the Australian Constitution (1972) 27–8, 49, 273–4; Erling Messer Hunt, American Precedents in Australian Federation (1930). La Nauze points out at 273 that Australia's constitutional framers were particularly influenced by the then recently published work of an English scholar, James Bryce, The American Commonwealth (1888), and that the actual knowledge of the United States Constitution and American constitutional law varied a great deal from one Convention delegate to another. See also Harry Evans, 'The Other Metropolis: the Australian Founders' Knowledge of America' (1998) 2 The New Federalist: The Journal of Australian Federation History 30–4.
[14] See William Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 608. In D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 111–20, Sir Samuel Griffith, the first Chief Justice of the High Court and one of the primary authors of the Australian Constitution (see La Nauze, above n 13, 48–81; Emeritus Professor Geoffrey Bolton, 'Lucinda Oration, Supreme Court of Queensland, Brisbane, 30 March 2001' in Michael White and Aladin Rahemtula (eds), Sir Samuel Griffith: The Law and the Constitution (2002) 1, 6–10) relied extensively on the reasoning of comparable American cases. The American influence can also be seen in Australian scholarship. See, eg, Stephen Gageler, 'The High Court on Constitutional Law: The 2001 Term' [2002] UNSWLawJl 8; (2002) 25 University of New South Wales Law Journal 194, 195 (modelled after the Harvard Law Review's annual Supreme Court Review, although Australia has no 'Term' equivalent); Jeffrey Goldsworthy, 'Interpreting the Constitution in Its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677, 678, 695–7.
[15] In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129, the landmark 'Engineers' case, Isaacs J stressed the differences between the United States and Australian Constitutions. Despite this case's huge importance in Australian constitutional law, its reasoning has been frequently criticised and the relevance of the Australian–American contrast questioned. See Tony Blackshield and George Williams, Australian Constitutional Law & Theory (4th ed, 2006) 296–324; Sir Anthony Mason, 'The High court of Australia: A Personal Impression of Its First 100 Years' [2003] MelbULawRw 33; (2003) 27 Melbourne University Law Review 864, 873; Geoffrey Sawer, Australian Federalism in the Courts (1967) 130–1, 198; Leslie Zines, The High Court and the Constitution (4th ed, 1997) 10–11; Sir Owen Dixon, 'Marshall and the Australian Constitution' in Jesting Pilate, above n 9, 166, 171.
[16] Sir Owen Dixon, 'Marshall and the Australian Constitution' in Jesting Pilate, above n 9, 166, 199.
[17] United States Constitution amend I (prohibiting abridgements of 'the freedom of speech', ratified in 1791).
[18] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 31 n 95 (Mason CJ) citing Smith v Daily Mail Publishing Co, 443 US 97, 106 (1979); 32 n 2 (Mason CJ) citing Bridges v California, [1941] USSC 148; 314 US 252, 270–1 (1921) and Landmark Communications Inc v Virginia, [1978] USSC 70; 435 US 829, 842 (1978); 60 n 95 (Brennan J) citing Crandall v Nevada, [1867] USSC 15; 73 US 35 (1867) ('Crandall') and The Butchers' Benevolent Association of New Orleans v The Crescent City Live–Stock Landing and Slaughter–House Company[1872] USSC 142; , 83 US 36 (1872) ('The Slaughterhouse Cases'); 73 n 30 (Deane and Toohey JJ) citing Crandall[1867] USSC 15; , 73 US 35, 44 (1867); 77 n 40 (Deane and Toohey JJ) citing Red Lion Broadcasting Co Inc v Federal Communications Commission, [1969] USSC 141; 395 US 367, 375–7 (1969) ('Red Lion Broadcasting'); 103 n 19 (McHugh J) citing The New York Times Co v Sullivan, [1964] USSC 40; 376 US 254, 269–70 (1964) ('NY Times'); ACTV [1992] HCA 45; (1992) 177 CLR 106, 140 n 11 (Mason CJ) citing NY Times[1964] USSC 40; , 376 US 254 (1964) and Smith v Daily Mail Publishing Co, 443 US 97, 106 (1979); 143 n 24 (Mason CJ) citing Cox Broadcasting Corp v Cohn, [1975] USSC 44; 420 US 469, 491 (1975); 143 n 25 (Mason CJ) citing Konigsberg v State Bar of California, [1961] USSC 73; 366 US 36, 50–1 (1961); 144 n 27 (Mason CJ) citing Monitor Patriot Co v Roy, [1971] USSC 32; 401 US 265, 272 (1971) and Buckley v Valeo, [1976] USSC 24; 424 US 1, 15 (1976); 159 n 54 (Brennan J) citing Mills v Alabama, [1966] USSC 96; 384 US 214 (1966); 159 n 56 (Brennan J) citing NY Times[1964] USSC 40; , 376 US 254 (1964); 169 n 84 (Deane and Toohey, JJ) citing Red Lion Broadcasting[1969] USSC 141; , 395 US 367, 375–7 (1969); 211 n 2 (Gaudron J) citing First National Bank of Boston v Bellotti, [1978] USSC 138; 435 US 765, 776–7 (1978); 212 n 4 (Gaudron J) citing First National Bank of Boston v Bellotti, [1978] USSC 138; 435 US 765 (1978); 213 n 10 (Gaudron J) citing Crandall[1867] USSC 15; , 73 US 35, 44 (1867) and The Slaughterhouse Cases[1872] USSC 142; , 83 US 36, 79 (1875); 214 n 11 (Gaudron J) citing Crandall[1867] USSC 15; , 73 US 35 (1867); 231 n 65 (McHugh J) citing Buckley v Valeo, [1976] USSC 24; 424 US 1, 14–15 (1976); 232 n 69 (McHugh J) citing Crandall[1867] USSC 15; , 73 US 35, 44 (1867); 235 n 73 (McHugh J) citing Buckley v Valeo, [1976] USSC 24; 424 US 1, 18 (1976); 239 n 78 (McHugh J) citing Buckley v Valeo, [1976] USSC 24; 424 US 1, 19 (1976); 241 n 80 (McHugh J) citing Mills v Alabama, [1966] USSC 96; 384 US 214, 219 (1966).
[19] [1964] USSC 40; 376 US 254 (1964).
[20] Ian Loveland, Political Libels: A Comparative Study (2000); Mark Tushnet, 'The Issue of State Action/Horizontal Effect in Comparative Constitutional Law' (2003) 1 International Journal of Constitutional Law 79; Adrienne Stone and George Williams, 'Freedom of Speech And Defamation: Developments in the Common Law World' [2000] MonashULawRw 15; (2000) 26 Monash University Law Review 362.
[21] [1997] HCA 25; (1997) 189 CLR 520.
[22] Ibid 562; below, Part II.
[23] In Nationwide News [1992] HCA 46; (1992) 177 CLR 1, Mason CJ and Dawson and McHugh JJ concurred on federalism grounds; in ACTV [1992] HCA 45; (1992) 177 CLR 106, Dawson J and Brennan J, in part, dissented.
[24] Applying the principle, see Theophanous [1994] HCA 46; (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 ('Stephens'); not applying the principle, see Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 ('Kruger'); Muldowney v South Australia (1996) 186 CLR 352; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272.
[25] [1994] HCA 46; (1994) 182 CLR 104.
[26] (1994) 182 CLR 221.
[27] Technically and, as it turned out, crucially, they were actually 3–1–3 decisions. Deane J acquiesced in the answers of Mason CJ, Toohey and Gaudron JJ to the specific questions reserved by the stated cases, but because his judgment advocated a far more speech–protective position, the High Court later, in Lange [1997] HCA 25; (1997) 189 CLR 520, treated Theophanous [1994] HCA 46; (1994) 182 CLR 104 and Stephens [1994] HCA 45; (1994) 182 CLR 211 as lacking a majority position. This reasoning seemed 'rather disingenuous' to Professor Loveland in Ian Loveland, Political Libels (1999) 148: 'It is something of an exercise in sophistry to claim that because Deane J went far beyond the point reached by the plurality he cannot be assumed to have approved their destination'.
[28] Kris Walker, 'It's A Miracle!: High Court Unanimity on Free Speech' (1997) 22 Alternative Law Journal 179.
[29] ACTV [1992] HCA 45; (1992) 177 CLR 106, 137.
[30] Ibid 135, 137, 139.
[31] See Jeremy Kirk, 'Constitutional Implications (I): Nature, Legitimacy, Classification, Examples' [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645, 647.
[32] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7. Yet the Court also said that, 'to have a full understanding of the concept of representative government' (at 559), it is necessary to heed the words of A H Birch, Representative and Responsible Government (1964) 17, that elections must be free 'with all that this implies in the way of freedom of speech …'. Birch was certainly not relying on the text of the Australian Constitution or any particular text.
[33] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7, relying in part on McGinty v State of Western Australia [1996] HCA 48; (1996) 186 CLR 140 ('McGinty') which included extensive discussion of the implied freedom of communication when it rejected a one–person one–vote principle.
[34] Leslie Zines, 'The Present State of Constitutional Interpretation' in Adrienne Stone and George Williams (eds), The High Court at the Cross Roads (2000) 224, 227–31. Of course, as demonstrated by the result in McGinty [1996] HCA 48; (1996) 186 CLR 140, other areas of constitutional law may be affected by the High Court's reliance on text and structure rather than 'representative democracy'. See, eg, Cass and Rubenstein, above n 12.
[35] [1992] HCA 45; (1992) 177 CLR 106, 138, 141; see also 149 (Brennan J: not 'very precise criterion for determining the validity of impugned legislation.')
[36] See above, n 1 and accompanying text.
[37] See Leslie Zines, 'Judicial Activism and the Rule of Law in Australia' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 400.
[38] Lange [1997] HCA 25; (1997) 189 CLR 520, 560–1.
[39] Ibid 557–8, 561–2.
[40] Compare Stephens [1994] HCA 45; (1994) 182 CLR 211, 232 (Mason CJ, Toohey and Gaudron JJ), 257 (Deane J), with Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 ('Levy'), 595–6 (Brennan CJ, denying such applicability but conceding a contrary majority in Stephens). In a recent decision, the Court came close but did not resolve the question: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 involved a State statute prohibiting insulting words spoken to a State police officer. Noting that the State conceded the applicability of the constitutional freedom to communications concerning State political matters, McHugh J stated that the concession was proper because such officers enforce federal as well as State law: at 44–5. Gummow and Hayne JJ acknowledged that there was force in McHugh's reasoning but relied solely on the concession without deciding its correctness: at 78. Justice Kirby did not rely on the concession but agreed with McHugh J that the State statute as applied to State police was within the constitutional freedom: at 89. See also Callinan J at 112–13 (disagreeing with concession); and Heydon J at 120 (assuming without deciding that the State statutory prohibition burdened the constitutional freedom).
[41] Lange [1997] HCA 25; (1997) 189 CLR 520, 571–2. See Walker, above n 28, 181.
[42] In Alexander Meiklejohn, 'The First Amendment Is an Absolute' (1961) The Supreme Court Review 245, Meiklejohn drew the boundaries of political communication in the United States surprisingly broadly: 255–7; but, despite the 'absolute' in the article's title, the article's argument is the unremarkable proposition that, whatever 'abridging the freedom of speech' in the First Amendment means, that is something the government may not do: 247–8. Compare McHugh J's statement in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 49: 'In determining whether a law is invalid because it is inconsistent with freedom of political communication, it is not a question of … balancing. … Freedom of communication always trumps [conflicting government powers].'
[43] Dr Stone analysed the tests that had been used by various Justices at the time of her writing: 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.
[44] See APLA Ltd v Legal Services Commissioner (NSW) (2005) [2005] HCA 44; 79 ALJR 1620, 219 ALR 403 ('APLA'); Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ('Lenah Game Meats'); McClure v Australian Electoral Commission (1999) [1999] HCA 31; 163 ALR 734 (Hayne J).
[45] Broadly speaking, this sort of means–end test governs entrenched constitutional protection in various legal systems. See, eg, R v Oakes [1986] 1 SCR 103 (Canada); Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (New Zealand); RAV v City of St Paul, Minnesota, [1992] USSC 99; 505 US 377 (1992) (United States).
[46] Or 'proportionality': Lange [1997] HCA 25; (1997) 189 CLR 520, 562; see also Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 90 (Kirby J).
[47] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[48] The new formula asks whether 'the [challenged] law regulates communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?': Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 51 (McHugh J), (emphasis added). Justices Gummow and Hayne, at 78, and Kirby J, at 82, concurred in this reading.
[49] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[50] Levy [1997] HCA 31; (1997) 189 CLR 579, 598 (emphasis added).
[51] [2004] HCA 39; (2004) 220 CLR 1, 48 (McHugh J), 77–8 (Gummow and Hayne JJ), 82 (Kirby J). See also 31 (Gleeson CJ).
[52] Lange [1997] HCA 25; (1997) 189 CLR 520, 568.
[53] Levy [1997] HCA 31; (1997) 189 CLR 579, 598. But see McHugh J's judgment in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 52 (broad ban permitted if 'only way that the system of representative government could be protected'), 53 (constitutional tolerance of burden on communication ends if burden is 'unreasonably greater than is achievable by other means').
[54] [1994] HCA 46; (1994) 182 CLR 104, 126; see also 163 (Deane J, concurring in the judgment).
[55] [1997] HCA 25; (1997) 189 CLR 520, 556.
[56] Naming this section 'The Common Law and the Constitution' identifies the focus of the Court's attention, but the need for accuracy requires frequent references to the relationship between statutes and the Constitution; and the tension between the common law emphasis and the unavoidable discussion of statutes reveals that the message of the Essay is more complicated than it first appears to be.
[57] As the Theophanous judgment made clear, the 'working out' of the 'contours' separating actionable defamation and freedom of communication cannot be expected to be the same in Australia and the United States. See Stone and Williams, above n 20.
[58] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[59] Ibid.
[60] Ibid (citing Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 199–200).
[61] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[62] Ibid.
[63] Ibid.
[64] Ibid 563.
[65] Ibid.
[66] Ibid.
[67] Ibid 562.
[68] Writing in the first decade of the Australian Constitution, Professor Harrison Moore said, '[b]ut even where the Australian Constitution departs most from the American, that departure has generally been conscious and advised, as an appreciation of the results of American experience, so that in interpretation we must not ignore but adapt': Harrison Moore, above n 14, 609.
[69] Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[70] See Sir Anthony Mason, 'The Common Law in Final Courts of Appeal Outside Britain' (2004) 78 Australia Law Journal 183, 190.
[71] This is a slight exaggeration: see generally Laurence H Tribe, American Constitutional Law (3rd ed, 2000) 466-501; but the qualifications that would be necessary to fine–tune the statement are entirely unnecessary for the purpose of the present analysis.
[72] When state law questions come before any federal court in the United States in so–called 'diversity' cases, the court decides those questions on the basis of state law as determined by a state court: see ibid 470–2.
[73] But see below, nn 184–205 and accompanying text (discussing common law methodology for interpreting constitutional law).
[74] Lange [1997] HCA 25; (1997) 189 CLR 520, 564 (quoting Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 199).
[75] It is close but not precisely the same as what the High Court said and did in Theophanous. Unlike the United States where the state court would decide the common law, in Theophanous it was the High Court itself which decided the meaning of both the common law and the Constitution. At one time, the common law of Australia was the common law of all of the British Commonwealth; and even as Australia became free to have its own common law distinct from that of the United Kingdom, the uniformity of the common law across former parts of the British Empire was regarded as important. See Mason, above n 70, 187 n 8, 189. Uniformity was much easier to maintain when appeals to the Privy Council were available throughout the Commonwealth — until 1986 in Australia: see Australia Act 1986 (UK), c 2, s 11; and until 2003 in New Zealand: see Supreme Court Act 2003 (NZ) s 42.
[76] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.
[77] See Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 202 ('ultimate difference of legal theory'; 'deep significance').
[78] [1997] HCA 25; (1997) 189 CLR 520, 566, 568. See above, in text accompanying nn 42–53. Greg Taylor has argued that the common law as developed by the Court to conform to the Constitution may be modified by statute: Greg Taylor, 'Why the Common Law Should Be Only Indirectly Affected by Constitutional Guarantees: A Comment on Stone' [2002] MelbULawRw 32; (2002) 26 Melbourne University Law Review 623, 627; but Dr Stone has persuasively argued to the contrary: Adrienne Stone, 'The Common Law and the Constitution: A Reply' [2002] MelbULawRw 33; (2002) 26 Melbourne University Law Review 646, 649, 653. Despite their different categories, both the common law and statutes must satisfy the same test mandated by the Lange judgment: [1997] HCA 25; (1997) 189 CLR 520, 567–8. Statutes 'cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution': 566. Of course, any common law development not required to satisfy the Australian Constitution is subject to statutory change.
[79] [1997] HCA 25; (1997) 189 CLR 520, 563. The exact meaning of this sentence is unclear, but it seems to be talking about the American concept of 'state action' and the American constitutional law principle that judicial action enforcing private rights is a form of state action according to NY Times[1964] USSC 40; , 376 US 254, 269–70 (1964) and its progeny. 'State law rights' in the quoted sentence may refer to the right (based on the United States Constitution) to a defence to a defamation action, as the NY Times case provides. See Stone, above n 6, 411–12.
[80] See Lange [1997] HCA 25; (1997) 189 CLR 520, 565.
[81] Rejecting a distinction between statutory laws abridging freedom of speech and common law abridgements, the Supreme Court of the United States said 'the test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised': NY Times[1964] USSC 40; , 376 US 254, 265 (1964).
[82] Adrienne Stone, 'The Australian Free Speech Experiment and Scepticism about the UK Human Rights Act' in Tom Campbell, K D Ewing and Adam Tomkins (eds) Sceptical Essays on Human Rights (2001) 391, 395–9; Adrienne Stone, 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219, 227–45.
[83] Stone, 'Freedom of Political Communication, the Constitution and the Common Law', above n 82, 228–9 (though Dr Stone concedes that such avoidance tactics do not entirely escape constitutional implications: 249).
[84] Ibid 236–44.
[85] See ibid 244, 246; see below, nn 184–205 and accompanying text.
[86] Dr Stone noted advantages as well as disadvantages in the Court's addressing rather than avoiding a constitutional question: Stone, 'Freedom of Political Communication, the Constitution and the Common Law', above n 82, 246–50.
[87] See, eg, Stephen Gageler, above n 14, 198.
[88] Lange [1997] HCA 25; (1997) 189 CLR 520, 576.
[89] Ibid 563.
[90] The reference to this 'constitutional classification' is not altogether clear. It seems most likely to refer to 'a constitutional privilege', referred to in the immediately preceding sentence, but it could refer more broadly to the First Amendment, from which the words 'the freedom of speech, or of the press' are quoted earlier in the paragraph. Nothing seems to turn on resolving that ambiguity.
[91] Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971) ('Bivens').
[92] Northern Territory v Mengel (1995) 185 CLR 307 ('Mengel').
[93] Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[94] Although government actions in violation of free expression can cause injury (for example, denying a government job to someone because she advocated the election of a disfavoured candidate), claims based on the freedom of expression are characteristically defensive — to avoid civil or criminal liability that would otherwise arise, as the relatively few Australian cases demonstrate.
[95] See Bivens, 403 US 388, 389, 392, 395–8 (1971).
[96] A Bivens claim was denied to an individual claiming a freedom of speech violation related to federal employment in Bush v Lucas, [1983] USSC 116; 462 US 367 (1983). The Court said in Correctional Service Corp v Malesko, [2001] USSC 68; 534 US 61, 68 (2001) that 'we have consistently refused to extend Bivens liability to any new context or new category of defendants.'
[97] 42 USC § 1983 (2000). Actions for violations of the First Amendment under § 1983 give rise to damages based only for actual harm, and an individual whose First Amendment right was abridged is not compensated for the value of the right lost. See Memphis Community School District v Stachura, [1986] USSC 147; 477 US 299, 309 (1986); Jean C Love, 'Damages: A remedy for the Violation of Constitutional Rights' (1979) 67 California Law Review 1242; Jean C Love, 'Presumed General Compensatory Damages in Constitutional Tort Litigation: A Corrective Justice Perspective' (1992) 49 Washington and Lee Law Review 67.
[98] See Wilson v Garcia, [1985] USSC 96; 471 US 261, 280 (1985); Monell v Department of Social Services of City of New York, [1978] USSC 102; 436 US 658 (1978); Monroe v Pape, [1961] USSC 22; 365 US 167 (1961); Susan S Kuo, 'Bringing in the State: Toward a Constitutional Duty to Protect from Mob Violence' (2004) 79 Indiana Law Journal 177, 206; John C Jeffries, Jr, 'Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts' (1989) 75 Virginia Law Review 1461, 1466–70.
[99] [1939] HCA 9; (1939) 62 CLR 339 ('James').
[100] Australian Constitution s 92 (freedom of interstate trade).
[101] James [1939] HCA 9; (1939) 62 CLR 339, 363–5.
[102] Ibid 362. See Michael Coper, Freedom of Interstate Trade under the Australian Constitution (1983) 329 n 28.
[103] Mengel (1995) 185 CLR 307, 348. Bivens actions for damages would add nothing to the common law action: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 52–3 (McHugh, Gummow and Hayne JJ); Kruger [1997] HCA 27; (1997) 190 CLR 1, 124–6 (Gaudron J).
[104] Simpson v Attorney-General [1994] 3 NZLR 667 ('Baigent's Case').
[105] Ibid 692, 702, 705.
[106] Lange [1997] HCA 25; (1997) 189 CLR 520, 560 ('personal rights'), 560 ('personal right'), 575 ('private right'), 567 ('private rights'); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 148–9 ('personal freedom'), 145, 147, 148, 162 ('personal right'), 153 ('rights of individuals') (Brennan J), 195 ('private right') (McHugh J).
[107] See Stone, above n 6. Dr Stone argues that the term 'personal rights', as used by the Court, purports to limit the implied constitutional freedom of communication for various reasons — because the freedom is restricted in scope, because it excludes protection of individual autonomy, and because it has no application to the common law; but, she argues, none of these limiting attributes are consistent with the basic freedom that the High Court has recognised.
[108] [1997] HCA 25; (1997) 189 CLR 520, 567 (emphasis added).
[109] United States Constitution amend I.
[110] This restriction on legislative power is applicable not only to Congress (and the federal government) but also to the several American states through 'incorporation' of freedom of speech in the Due Process Clause of the Fourteenth Amendment which provides that '[n]o State shall … deprive any person of … liberty … without due process of law': United States Constitution amend XIV, § 1. See Gitlow v People of the State of New York, [1925] USSC 174; 268 US 652 (1925) ('Gitlow') holding that the First Amendment is incorporated in the Fourteenth Amendment through the Due Process Clause. See also Laurence H Tribe, American Constitutional Law (2nd ed, 1988) § 11–2. The Lange Court noted the incorporation, although the Court sensibly (but erroneously) seemed to place the locus of incorporation in the Fourteenth Amendment's Privileges and Immunity Clause (Lange [1997] HCA 25; (1997) 189 CLR 520, 563) — as did Alexander Meiklejohn, see Meiklejohn, above n 1, 59–61.
[111] Lange [1997] HCA 25; (1997) 189 CLR 520, 566. That the resulting parallel is not simply a play on words is supported by the fact that the framers of the United States Constitution, those in Philadelphia in 1787 and those who adopted the 'Bill of Rights' in 1791, were primarily if not exclusively concerned with limiting national legislative power. See Leonard Levy, Origins of the Bill of Rights (1999) 35–7, 43; Akhil Amar, The Bill of Rights: Creation and Reconstruction (1998) 6, 21. See also Joseph J Ellis, Founding Brothers: The Revolutionary Generation (2000) 48–80. Limitation on state legislative power, and thus a much wider protection of freedom of speech, did not come until much later: see Gitlow[1925] USSC 174; , 268 US 652 (1925). A curiously parallel concern about national but not State restrictions on religious freedom was expressed at the Australasian Constitutional Convention in Melbourne by Henry Higgins, a representative from Victoria (and later a High Court Justice): Official Record of the Debates of the Australasian Federal Convention, Melbourne, 7 February 1898, 654–7 (Henry Higgins).
[112] See generally above n 7.
[113] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[114] See generally above, nn 42–53; APLA (2005) [2005] HCA 44; 79 ALJR 1620; 219 ALR 403.
[115] [1994] HCA 46; (1994) 182 CLR 104, 147–48.
[116] Ibid 148.
[117] See David Feldman, 'The Human Rights Act 1998 and Constitutional Principles' (1999) 19 Legal Studies 165; Conor A Gearty, 'Unraveling Osman' (2001) 64 Modern Law Review 159; Anthony Giddens, 'Risk and Responsibility' (1999) 62 Modern Law Review 1; Lord Hoffmann, 'Human Rights and the House of Lords' (1999) 62 Modern Law Review 159; Murray Hunt, 'The "Horizontal Effect" of the Human Rights Act' (1998) Public Law 423; Giorgio Monti, 'Osman v UK — Transforming English Negligence Law into French Administrative Law' (1999) 48 International and Comparative Law Quarterly 757; Sir Stephen Sedley, 'The Common Law and the Political Constitution: A Reply' (2001) 117 Law Quarterly Review 68; Stone, above n 6, 401–4.
[118] [1994] HCA 46; (1994) 182 CLR 104, 130; and citing for the same proposition, Lingens v Austria (1986) 8 European Human Rights Reports 407; Oberschlick v Austria [1991] 204 Eur Court HR (ser A) 30, interpreting art 10 of the European Convention on Human Rights.
[119] See Laurence H Tribe, American Constitutional Law (2nd ed, 1988) §§ 5–15, 18–1 to 18–7.
[120] That determining which actions are 'actions' of the 'state' can be an elusive question is recognised and well demonstrated by Dr Stone. See Stone, above n 6, 403–04, 415–17.
[121] Closely related to the state versus private action aspect of the American state action doctrine is the concept of negative versus affirmative rights: the Constitution does not interfere with private action and it does not require the government affirmatively to help constitutional right holders; if it did, the obligation of the government not to interfere would turn into an obligation to facilitate private actions. McClure v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734, 740–41 (Hayne J), denied a request for affirmative relief to order the media to cover the petitioner's election campaign. In that case, Hayne J quoted Lange [1997] HCA 25; (1997) 189 CLR 520, 560, pointing out that the freedom of political communication was 'negative in nature' and did not 'confer personal rights.' That decision, for that reason, is entirely consistent with American freedom of speech law.
[122] [1997] HCA 25; (1997) 189 CLR 520, 562.
[123] See Philip Ayres, Owen Dixon (2003); Mason, above n 15, 878–79; Michael Wait, 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' [2001] FedLawRw 3; (2001) 29 Federal Law Review 57.
[124] [1997] HCA 25; (1997) 189 CLR 520, 562, 564.
[125] [1997] HCA 25; (1997) 189 CLR 520, 562, quoting from Jesting Pilate, above n 9, 199–200.
[126] See R F V Heuston, Essays in Constitutuional Law (2nd ed, 1964), 14–15, 23–24.
[127] See Attorney-General (NSW) v Trethowan [1932] UKPCHCA 1; (1931) 44 CLR 394; (1932) 47 CLR 97, in which Dixon J applied this analysis, qualifying parliamentary sovereignty in Australia, to find invalid legislation that purported to eliminate the upper house of the New South Wales Parliament without following the required procedures for doing so.
[128] See Jesting Pilate, above n 9, 42; 199–200; 206–07.
[129] Some aspects of this lecture (characterised by Dixon's biographer as a 'major paper', Philip Ayres, Owen Dixon (2003) 67) were repeated much later, in 1957, in his lecture entitled, 'The Common Law as the Ultimate Constitutional Foundation' in Jesting Pilate, above n 9, 203.
[130] See Jesting Pilate, above n 9, 39.
[131] Ibid 42.
[132] Ibid.
[133] Ibid 43.
[134] Ibid.
[135] Ibid 51.
[136] Ibid 44.
[137] As assumed in Australia. See ibid 44–47.
[138] Ibid 43. Sir Owen's description of 'governmental power ... in the governed' anticipated the words of Alexander Meiklejohn over a decade later. In the first chapter of Free Speech and Its Relation to Self-Government (1948), 'The Rulers and the Ruled' Meiklejohn explained, '[f]ree men are not non-governed. They are governed–by themselves': at 16. Dixon’s diaries exist for this period (1935–65) and are said to have listed books he was reading. But the diaries are not generally available. See Philip Ayres, 'Dixon Diaries' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court (2001) 222, 224.
[139] Jesting Pilate, above n 9, 44; see above, text accompanying nn 9, 16.
[140] Compare Wait, above n 123, 73 ('it is now difficult to find an Australian constitutional lawyer who still adheres to the doctrine of parliamentary sovereignty') with Julie Taylor, 'Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy' [2004] FedLawRw 3; (2004) 32 Federal Law Review 57, 59 (quoting Dawson J: 'there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom'); Jeffrey Goldsworthy, 'The Philosophical Foundations of Parliamentary Sovereignty' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Powers, Democracy and Legal Positivism (2000), 229–50.
[141] In fact, Sir Owen pointed out in this lecture that 'it may seem remarkable that so long a time should elapse' before the limits of parliamentary supremacy in Australia should be seen. Dixon's application of those limits in his Trethowan judgment, delivered only four years before the lecture, certainly had not been generally foreseen and accepted.
[142] Jesting Pilate, above n 9, 51.
[143] [1951] HCA 5; (1950) 83 CLR 1.
[144] Ibid 193.
[145] [1988] HCA 63; (1988) 166 CLR 79. See also Burns v Ransley [1949] HCA 45; (1949) 79 CLR 101, 110 (the Commonwealth 'has no power to pass a law to suppress or punish political criticism') (Latham CJ, dictum); at 116–8 (reading facts not to support conviction under criminal sedition statute because words of defendant on which the conviction was based were 'not expressive of an intention to effect' the 'purpose of exciting disaffection') (Dixon J, dissenting). Despite an evenly divided High Court in Burns, the conviction was affirmed by the casting vote of Chief Justice Latham: [1949] HCA 45; (1949) 79 CLR 101, 111. But see Michael Coper, 'Tied Vote' in A R Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 672 (suggesting that the statutory authorisation for such a tie-breaking vote by the Chief Justice may be unconstitutional). Justice Dixon's reasoning in his Burns dissent is strikingly reminiscent of that of Judge Learned Hand in Masses Publishing Co v Patten, 244 Fed 535 (SDNY, 1917), in which Judge Hand read an American federal statute narrowly, requiring very specific intentional words of incitement, to avoid a confrontation with fundamental principles of democratic government. Although Judge Hand's decision was reversed by the United States Court of Appeals for the Second Circuit, 246 Fed 24 (1917), there are persuasive reasons for thinking that the Hand Masses opinion has been rehabilitated by the United Supreme Court in Brandenburg v Ohio, [1969] USSC 139; 395 US 444 (1969). See Gerald Gunther, 'Learned Hand and the Origins of the Modern First Amendment Doctrine: Some Fragments of History' (1975) 27 Stanford Law Review 719.
[146] [1988] HCA 63; (1988) 166 CLR 79, 100 (Mason CJ and Deane and Gaudron JJ); 101 (Wilson and Dawson JJ); 104, 115–17 (Brennan J); 117 (Toohey J).
[147] See Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 26–29 (Mason CJ); Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, [130] (Gummow J) ('appropriate and adapted' to achieving an end within a legislative power).
[148] Justice Toohey, writing extrajudicially in a law review article published contemporaneously with the announcement of the ACTV and Nationwide News judgments, suggested a line of argument that would convert the specific result of Davis and the Nationwide News concurrence into a broad general principle creating a presumption in favour of all 'fundamental common law liberties'. Justice John Toohey, 'A Government of Laws, and Not of Men?' (1993) 4 Public Law Review 158, 170. Justice Toohey's argument has been strongly criticised: see George Winterton, 'Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 133, 135 ('audacious and imaginative', but 'untenable'); Jeffrey Goldsworthy, 'Implications in Language, Law and the Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 174 (provides 'no support whatsoever'). But the more modest reading of legislative powers to avoid significant, particular infringements of free expression seems far less vulnerable in light of the narrowness of the limitation and the broad and deep recognition of the free speech value throughout the British Commonwealth. See, eg, Attorney-General v Times Newspaper Ltd [1974] AC 273, 315 (Lord Simon of Glaisdale); Attorney-General v The Guardian [1987] UKHL 13; [1987] 1 WLR 1248, 1286 (Lord Bridge, dissenting); SDGMR v Dolphin delivery Ltd [1986] 2 SCR 573, 584.
[149] [1992] HCA 46; (1991) 177 CLR 1, 29–34, 34; see at 88 (Dawson J); 103, 105 (McHugh J).
[150] [1992] HCA 46; (1991) 177 CLR 1, 30–31.
[151] The United States Constitution amend X.
[152] Jesting Pilate, above n 9, 170.
[153] See George Winterton, 'The Communist Party Case' in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 132; Leslie Zines, Constitutional Change in the Commonwealth (1991) 40–41.
[154] Commonwealth Constitution, s 107 (emphasis added).
[155] Re Richard Foreman & Sons Pty Ltd; Uther v The Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 ('Uther').
[156] Commonwealth v Cigamatic Pty Ltd [1962] HCA 40; (1962) 108 CLR 372.
[157] Uther [1947] HCA 45; (1947) 74 CLR 508; see Cigamatic [1962] HCA 40; (1962) 108 CLR 372, 378. Compare US Term Limits, Inc v Thornton, [1995] USSC 51; 514 US 779, 802 (1995) (Tenth Amendment 'could only "reserve" that which existed before'; quoting Justice Story's treatise, 'the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government').
[158] For reasons not relevant to the argument in the text, the Cigamatic principle has been criticised — because of the difficulty of distinguishing the cases for which the principle requires immunity for the Commonwealth from the generality of situations for which State law does apply to the Commonwealth (such as the law of contracts) and because, with rare exceptions, the Commonwealth does not need a broad immunity as it can protect itself against adverse State legislation through Commonwealth legislation and the supremacy of federal law under section 109. See Re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410, 475 (Kirby J, dictum); John Doyle, '1947 Revisited: The Immunity of the Commonwealth from State Law' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 47; R P Meagher and W M C Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal 25.
[159] Cf re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410, 507–08 (Kirby J, dictum) (the State 'could not legislate in a way that would impair the integrity or autonomy of the Government of the Commonwealth'); A R Blackshield, 'The Implied Freedom of Communication' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232, 265 ('if any aspect of Commonwealth institutions is to be "immune" from State laws, that immunity must at least extend to Commonwealth political institutions, and especially to the Commonwealth Parliament.')
[160] Lange [1997] HCA 25; (1997) 189 CLR 520, 562.
[161] Jesting Pilate, above n 9, 51.
[162] See above, text accompanying nn 2–6, 23–53.
[163] Jesting Pilate, above n 9, 51. Although Dixon specifically referred to 'men' and 'lawyers', ibid, it seems fair to assume he was talking about the judiciary as well.
[164] It may seem ironic to associate Sir Owen Dixon with the implied freedom of political communication even obliquely, given the controversial nature of the implication and the identification of Dixon with 'strict legalism' stemming from his lecture on becoming Chief Justice, Jesting Pilate , above n 9, 247, 249. But he was not hostile to implications, see ACTV [1992] HCA 45; (1992) 177 CLR 106, 134–36 (Mason CJ), and it is recognised that his legal thinking was not rigid, see Mason, above n 15, 873; Justice Kenneth Hayne, 'Owen Dixon' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 220. Dixon fully appreciated the riddle posed by the duality of the common law as both source of and subordinate to the Constitution, Jesting Pilate, above n 9, 207–13, and he even saw the occasion for discussing the riddle as an opportunity for playfulness: at 211–13.
[165] See Blackshield, above n 159, 235–39.
[166] In their separate concurring judgment based on the implied (extrinsic) freedom in Nationwide News, Toohey and Deane JJ gave considerable emphasis to this language limiting the heads of legislative power under section 51. See [1992] HCA 46; (1992) 177 CLR 1, 68–69, 79. In deciding that the Constitution contained an implied prohibition protecting political communications, Gaudron J not only pointed to this same language but adopted the very same test as that used by Mason CJ and McHugh J, who were relying upon the federalism (intrinsic) ground of lack of legislative power: at 94–95 ('appropriate and adapted' to a permissible end).
[167] Lange [1997] HCA 25; (1997) 189 CLR 520, 561.
[168] Ibid 564 (emphasis added).
[169] Ibid 562.
[170] Jesting Pilate, above n 9, 44.
[171] Zines, above n 34, 227 ('tone more than substance that seemed to presage a new more legalistic attitude').
[172] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 142 (Brennan J, dissenting)
[173] Ibid 143–44.
[174] Lange [1997] HCA 25; (1997) 189 CLR 520, 565–66.
[175] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 143–44.
[176] Lange [1997] HCA 25; (1997) 189 CLR 520 , 565.
[177] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 143.
[178] Lange [1997] HCA 25; (1997) 189 CLR 520, 565 (emphasis added).
[179] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 144.
[180] Ibid.
[181] Lange [1997] HCA 25; (1997) 189 CLR 520, 565.
[182] Ibid 143.
[183] Zines, above n 34, 227. Compare Sir Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience' [1986] FedLawRw 1; (1986) 16 Federal Law Review 1, 28 with Sir Gerard Brennan, 'A Tribute to Sir Anthony Mason' in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 13.
[184] Judge of the Federal Court of Australia.
[185] Susan Kenny, 'The High Court on Constitutional Law: The 2002 Term' [2003] UNSWLawJl 10; (2003) 26 University of New South Wales Law Journal 210, 217.
[186] Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982), 43; Stephen M Griffin, American Constitutionalism: From Theory to Politics (1996) 150; Robert C Post, 'Theories of Constitutional Interpretation' in Post (ed), Law and the Order of Culture (1991) 20; David A Strauss, 'Common Law Constitutional Interpretation' (1996) 63 The University of Chicago Law Review 877, 879.
[187] Kenny, above n 185, 217.
[188] Ibid 219.
[189] Ibid. Justice Kenny further observes that the evolution is not always 'completely rational or satisfactory', is 'more deliberate and self-conscious,' and is 'open' to the Court to 'depart from and overrule previous authorities', when the Court is persuaded 'for some sufficient reason.'
[190] [2002] HCA 57; (2002) 212 CLR 1.
[191] Kenny, above n 185, 218. As interpreted and applied by Kenny J, a controlling question was whether this newly created common law doctrine did or did not 'trespass into the constitutionally protected freedom of communication in matters of government and politics': at 218.
[192] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 29–40.
[193] Ibid 29.
[194] See above, text accompanying nn 174–81.
[195] See Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 40–41. Chief Justice Gleeson and Justice Hayne concluded that the procedural setting of Roberts v Bass made it an inappropriate case for developing the common law under Lange ((2002) [2002] HCA 57; 212 CLR 1, 9, 79); Kirby J concurred in the plurality judgment for the same reasons: at 71; Callinan J dissented on the ground that the Lange 'defence' was not available and would fail if it were: at 107.
[196] [1997] HCA 31; (1997) 189 CLR 579; see above, text accompanying nn 40, 50, 53.
[197] Lenah Game Meats (2001) 208 CLR 199, 259 (Kirby J). A very interesting statistical analysis of the Gleeson High Court shows Kirby J to be a non-representative Justice on the basis of his judgments: Andrew Lynch, 'The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years' (2003) 26 Uiversity of New South Wales Law Journal 32, 47–49. In the article, Lynch speculates about whether Kirby's frequent non-alliance with the other Justices earns him the label of 'Great Dissenter'; but, using Oliver Wendell Holmes as the model bearer of that label, he suggests waiting for the judgment of time to determine whether the Kirby dissents, like those of Holmes, tend to turn into majority views: at 48.
[198] Justice Kenny provides other examples outside the political communication area, and her position was that the common law was the dominant methodology in constitutional law, generally, in 2002.
[199] Chief Justice Gleeson opined that the freedom was not a proper balancing factor for a trial judge's discretionary decision whether or not to issue the injunction: Lenah Game Meats (2001) 208 CLR 199, 219–20. Justice Callinan, dissenting, expressed a fundamental disagreement with Lange and the judicial creation of the implied freedom and announced his intention to resist its expansive application: at 330–31.
[200] [2004] HCA 39; (2004) 220 CLR 1.
[201] See below, text accompanying nn 217–25.
[202] [2004] HCA 41; (2004) 220 CLR 181.
[203] Ibid 195 (Gleeson CJ, discussing ACTV and Levy); 206-7, 209-11, 212, 218-9, 219, 220 (McHugh J, discussing Nationwide News, Langer, ACTV, Muldoney, Levy, McClure, Kruger); 233, 240, 242 (Gummow and Hayne JJ, discussing Langer, McClure, ACTV); 252-3, 253-4 (Kirby J, discussing ACTV, Langer); 282-3 (Callinan J, discussing ACTV, Kruger); 299 (Heydon J, discussing ACTV).
[204] [1997] HCA 25; (1997) 189 CLR 520, 565–66.
[205] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 102.
[206] Zines, above n 15, Ch 17 (Methods, Techniques and Attitudes); David A Strauss, 'Common Law Constitutional Interpretation' (1996) 63 The University of Chicago Law Review 877, 888 (with respect to American constitutional law: 'the common law model is . . . the best way to understand what we are doing; the best way to justify what we are doing; and the best guide to resolving issues that remain open'). Cf Fiona Wheeler, 'Due Process, Judicial Power and Chapter III in the New High Court' (2004) 32 Federal Law Review 205 (describing the evolutionary development of 'due process' even as the High Court's activism waxes and wanes).
[207] Kenny, above n 185, 222; see Strauss, above n 206, 880.
[208] See Zines, above n 15, 433–44.
[209] Australian Constitution ss 6, 49, 62, 64, 83; see also ss 1, 61, 62 cited in ACTV [1992] HCA 45; (1992) 177 CLR 106, 137.
[210] [1997] HCA 25; (1997) 189 CLR 520, 567.
[211] Ibid.
[212] See Zines, above n 15, 433–44; Stone, above n 43. The assimilation of the common law methodology and sundry versions of 'originalism' will often be complex and controversial. See Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1, 28–35; Justice Antonin Scalia, A Matter of Interpretation: federal courts and the law: an essay (1997) 37–40.
[213] See, eg, Eric Barendt, Freedom of Speech (1985) 8–23; Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 15–72.
[214] Freedom of speech giving rise to personal autonomy can also be related to the self-government argument. Dr Adrienne Stone makes this point in 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication', above n 6, 391–99. In discussing a possibly expansive view of the freedom of political communication, Dr Stone drew upon the debate between American scholars, Robert Post, 'Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse' (1993) 64 University of Colorado Law Review 1109, and Owen Fiss, 'Free Speech and Social Structure' (1986) 71 Iowa Law Review 1405, who were arguing for rival free speech conceptions which instrumentally serve democracy. Dr Stone noted that she has 'not discussed regulation of pornography and hate speech . . . because it seems unlikely that the Australian courts would regard these as political communication': Stone, above n 6, 399 n 136. For the most part, obscene language, pornographic pictures, and sexually erotic dancing are protected as free expression, if they are, because of the intrinsic freedom of individuals to say and hear what they please for their own fulfilment, pleasure, or edification. These goals for free expression, too, can be characterised in terms of autonomy, but that is not the autonomy of Alexander Meiklejohn or the Australian Constitution. So, it is understandable that the Australian courts would not be expected to protect pornography as political communication. Different reasons would be required for excluding hate speech, which is often impossible to disentangle from the kind of 'emotional, upsetting or affronting' words that may be protected in Australia, as well as in the United States: Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, [254] (Kirby J). Cf Virginia v Black, [2003] USSC 2763; 538 US 343 (2003); RAV v City of St Paul, [1992] USSC 99; 505 US 377, 414 (1992) (White J)( 'expressive conduct that causes only hurt feelings, offense, or resentment … is protected by the First Amendment'); 436 (Stevens J) (if expression is not threatening, an individual 'is free to burn a cross … to express his views about racial supremacy'); Henry Louis Gates Jr 'Let Them Talk' (1993) 209(12) The New Republic 37, reviewing Mari Matsuda et al, Words That Wound (1993).
[215] Lange [1997] HCA 25; (1997) 189 CLR 520, 557–62; ACTV [1992] HCA 45; (1992) 177 CLR 106, 141–42 (Mason C J).
[216] See cases discussed above, in text accompanying nn 190–203. Writing before most of these cases were decided, Dr Adrienne Stone observed 'a discernable trend towards narrowing the coverage of the freedom' (Stone, above n 6, 383–400); but she nevertheless presented strong arguments supporting a broad reading of the implied freedom (at 380–90).
[217] [2004] HCA 39; (2004) 220 CLR 1. See Adrienne Stone and Simon Evans, 'Freedom of Speech and Insult in the High Court of Australia' (2006) 4 International Journal of Constitutional Law 677; William Buss, 'Constitutional Words About Words: Protected Speech and "Fighting Words" Under the Australian and American Constitutions' (2006) 15 Transnational Law and Contemporary Problems 489.
[218] See, eg[2004] HCA 39; , (2004) 220 CLR 1, 14 (McHugh J).
[219] Justice McHugh held that the statute as applied to this speech was unconstitutional (ibid 32); Gummow and Hayne JJ in a joint judgment (at 63) and Kirby J (at 80), all read the statute narrowly, indicating that a broader reading applied to the defendant's speech would have been unconstitutional.
[220] Ibid 21.
[221] Ibid 102.
[222] Ibid 115.
[223] Ibid 54 ('insults are a legitimate part of the political discussion protected by the Constitution').
[224] Ibid 78 ('insult and invective have been employed in political communication at least since the time of Demosthenes').
[225] Ibid 91 ('Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion').
[226] Meiklejohn, above n 1, 39, 63.
[227] See APLA (2005) [2005] HCA 44; 79 ALJR 1620, 219 ALR 403.
[228] [1997] HCA 25; (1997) 189 CLR 520, 562.
[229] Jesting Pilate, above n 9, 51.
[230] [1997] HCA 25; (1997) 189 CLR 520, 562.
[231] See above, text accompanying n 42.
[232] Harry Kalven, 'The New York Times Case: A Note on "the Central Meaning of the First Amendment"' (1964) Supreme Court Review 191, 221 n 125 (quoting Meiklejohn for the proposition that NY Times[1964] USSC 40; , 376 US 254 (1964) was 'an occasion for dancing in the streets').