#7095 - Implied Freedom Of Political Communication - Constitutional Law

[X] may argue [law] breaches the implied freedom of political communication (IFPC). The HCA has held the IFPC to be a necessary implication of the text and structure of the CC, including ss 7 and 24 (which required that members of the Senate and House of Representatives be ‘directly chosen’ by the people) and s 128 (which requires a referendum for amendments to the Constitution), as well as s 62 and 64 (Lange).

For the voters to be able to make a genuine choice (and to sustain the system of representative government the CC was held to establish), they must have access to political information that could influence their choices. The sections do not confer personal rights on individuals but rather preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

The IFPC can limit both State and Cth laws.

Whether a law breaches the IFPC depends on the application of the test from Lange, as reformulated in Coleman.

The Lange test involves two questions.

Is there a burden?

Here, the burden on alleged political communication is [per facts].

• According to Mulholland v Australian Electoral Commission, the right being infringed by a challenged law must exist under the general law (CL or statute), not the challenged law.

This burden limits

• Verbal communication, which is protected under the IFPC (speaking)

• Non-verbal communication (such as signs, symbols, gestures and images) which is protected under the IFPC (Levy).

Is it political communication?

Per Lange, political communication is the ability of the people to communicate with each other with respect to matters

• that could affect their choice in federal elections or constitutional referenda

• or that could throw light on the performance of [federal] Ministers of State and the conduct of the executive branch of government.

• Can include discussion/criticism of police (obiter in Coleman), since their conduct is relevant to how the government is viewed

• Communication does not have to be rational or peaceful to be political communication; insults are protected (obiter in Coleman)

• Appeals to emotion are protected just as much as appeals to reason (Levy)

Limits to what may count as communication

ADVERTISING: Political communication was held not to include purely commercial speech/advertising in Theophanous. While this was before Lange, Lange’s definition (while still broad) is narrower than Theophanous and presumably the case would be the same now. Additonally, since Lange, commercial advertising in respect of law services has been held not to be political speech (APLA v Legal Services Commissioner).

STATE LEVEL: Communication at State level might be political communication protected under the IFPC; however, there may need to a connection to federal political matters (Lange). Brennan and McHugh J said in Levy that the implied freedom does not cover communications purely about state politics. The Court in Lange did note however that the scope of political communication remains broad (even discussion of matters concerning NZ may ‘throw light’ on Australian federal government matters).

There are two sub-questions to be answered in this part of the Lange test.

Is the law designed to achieve a legitimate end compatible with representative government?

• The purpose or object of the law must be established and considered. Here, the purpose appears to be [purpose], which [X] can argue is a legitimate end because…

• Possible justifications

  • improving the quality of political debate (ACTV)

    • This restriction was not allowed but the court was not following Lange at that time; could possibly argue under the new formulation

  • reducing the costs of election campaigning (ACTV)

  • reducing the dependence of political parties upon fundraising (ACTV)

  • quality control of migration advice (Cunliffe)

  • public safety (Levy)

  • protection and facilitation of the voting system (Langer v Commonwealth, Mulholland v Australian Electrical Commission)

  • public order (Coleman v Power)

  • protecting people involved in politics and government to some degree from defamation (majority in Theophanous; Lange)

Is the law reasonably appropriate and adapted to achieving that end?

• This question considers the proportionality or reasonableness of the methods by which the law seeks to achieve the purpose.

• A law may not be reasonably appropriate and adapted to achieving its ends if

  • the penalties are excessive (Coleman)

  • there is an overly broad range of situations in which speech is restricted (Coleman)

  • the burden imposed is unreasonably greater than is achievable by other means (Coleman)

• Total prohibitions will only be justified if there is no alternative way to protect representative...