#7108 - Implied Rights Theory - Constitutional Law

• Overturned the implied governmental immunities and reserved State powers doctrines

• Majority expressed scepticism about implications in general

• Cth passed legislation that that Communist Party was an unlawful organisation and allowed the Governor to declare other organisations unlawful

• Property was liable to be seized and members were prohibited from being employed by the Cth or trade unions. The Cth was authorised to take action against any body (other than a trade union) supposedly allied to the Communist Party or who ha communist connections if it was satisfied that ‘the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or laws of the Commonwealth’.

  • Deprived people of contractual capacity and their civil rights in regards to employment and freedom of association and other rights

• DECISION: HCA held the Act invalid as it exceeded the scope of the defence power. It held that the control of civil liberties was not incidental to the purpose of defence in peace time (would be different in war time). NO REFERENCE TO IMPLIED RIGHTS

• The court also pointed out that the expressed legislative opinion in the preamble that the Communist Party was a danger to the nation did not make it so. The mere aims of communists, without action, and the legislative opinion and conferral of discretion on the G-G to declare a body as a threat to the nation (if he so perceived it) did not establish a link between the Act and the head of power.

• Broadcasting Act 1942 (Cth) prohibited political advertising on radio and TV in relation to elections during election campaigns including Cth, State and Territory and local government elections and referenda. The Act mitigated the effects of this by:

  • Permitting political material to be discussed on the news (talkback radio was also not affected). Print media was not affected.

  • Requiring radio and TV stations were required to provide free time for political messages. Ninety per cent of the free broadcasting time was to be allocated to political parties already represented in the relevant legislature. A small amount was to be allocated to parties without sitting members and independents. No provision was made for groups liked unions, corporations or NGOs, who were not standing for election. The legislation also permitted one policy launch per candidate.

• The legislation was challenged for, inter alia, impeding freedom of political communication.

• The Cth govt argued that the legislation was justified as avoiding undue influence on politicians by wealthy individuals/corporations who fund their campaigns. Govt also argued political advertising is generally brief and emotive and does not engage the rational mind of viewers.

• DECISION: 5:2 (Brennan and Dawson JJ dissenting) held that the legislation unjustifiably overrode the IFPC. All judges agreed that the IFPC existed.

  • Majority held the IFPC does protect some form of political communication, but that the right is not absolute; there were some limitations on the freedom to be allowed (eg if legislation appropriate and adapted to the government’s legitimate objectives).

  • The IFPC protects PC concerning matters of State, because it is not possible to segregate the two levels of politics.

  • Dawson thought the IFPC was narrow and would only invalidate a law depriving voters of all access to information about the electoral candidates.

• Decided at same time as ACTV

• Industrial Relations Act 1988 (Cth) provision prohibited writing or speech calculated to bring the Australian Industrial Relations commission or a member of it into dispute. Similar to a prohibition of contempt, but the legislation did not provide for the usual defences of fair comment or honest and reasonable mistake.

• A newspaper’s publisher was prosecuted under the provisions when one of the newspaper’s columnists accused the Commissioners of being corrupt and compliant.

• The legislation was challenged as being beyond the conciliation and arbitration power and for infringing freedom of political communication.

• DECISION: HCA unanimously struck down the legislation. Mason CJ, McHugh and Dawson JJ held that the provisions were outside the scope of the power, while Brennan, Deane, Toohey and Gaudron JJ held they were within power but unjustifiably overrode an implied freedom of political communication, since the prohibition was not subject to defences and an unjustifiable blanket ban was not appropriate and adapted.

• T was a member of the House of Reps and Chair of an inquiry on immigration.

• He sued the Herald and Weekly Times and Bruce Ruxton (president of the Returned and Services League and the writer of the letter) for publishing a letter critical of his policies concerning immigration and multiculturalism.

• The Herald argued the publication was protected by the IFPC. The law of defamation at the time was in CL; the issue arose was whether the CL must be consistent with the IFPC.

• D argued that the letter was protected by IFPC and that that protection was a sufficient defence to a CL action in defamation.

• DECISION: majority held that the CL, like statute, must be consistent with the IFPC that the CC protects. A majority of 4:3 thought the CL as it stood did not adequately protect IFPC. It therefore established a constitutional defence to a defamation action: D can argue that what D had said was protected by IFPC.

• Political communication includes:

  • Criticisms of the views of a member of Parliament (Mason CJ, Toohey and Gaudron JJ)

  • Discussion of people whose activities have become the subject of political debate

• Political communication does not include purely commercial speech/advertising

• the WA newspaper was sued by a member of the State parliament over some articles discussing overseas travel of the member and others. This seems to be a matter purely of State politics (that travel allowances are being abused).

• DECISION:majority said the IFPC extends to public discussion of members of a State parliament. They referred to the question of whether you could separate fed from state politics. They said you could not really draw a distinction.

• Concerned equality of voting rights. The question was whether there was an implied constitutional entitlement to voting equality.

• DECISION: The members of the Court developed concerns they had expressed in Theophanous about the differing approaches taken to recognising implied constitutional requirements.

• McHugh thought non-textual approaches treated underlying principles as independent sources of constitutional entitlements (as though there were a new CC provision guaranteeing representative democracy). Implications were being based on other implications. He thought this amounted to an alteration to the CC without the authority of the people.

• Brennan J said similarly that implications are not devised by the judiciary, but exist in the text and structure of the CC. No implication can be drawn from the CC that is not based on the actual terms or structure. Accordingly it was not permissible to treat ‘representative democracy’ as though it were contained in the CC, to give the term meaning derived from sources extrinsic to the CC and to invalidate a law for inconsistency with that meaning.

• Toohey and Gaurdon JJ in separate judgments held that the CC has to be interpreted in light of its underlying principles, but Gaudron attempted to tie her interpretation more closely to the relevant texts.

This shows that opinion had polarised.

• David Lange (a former NZ-PM) sued the ABC for defamatory statements in a Four Corners program. The ABC argued, inter alia, that it had a ‘constitutional defence’ based on Theophanous.

• DECISION: unanimous agreement on IFPC.

• ‘Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be ‘directly chosen by the people’ of the Commonwealth and States, respectively.’

• CC gives effect to the institution of representative government only to the extent the text and structure of the CC establish it. Only that form of representative government to be found in the CC sections is provided for. The freedom will be what the terms and structure prohibit, authorise or require.

  • rejects the view that underlying constitutional concepts or principles can be legitimate foundations for implied constitutional rights. This will limit further rights being implied.

• 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.

• Political communication definition: [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’.

• Theophanous defence rejected: now there is a CL defence for defamation that covers the defendant

• Levy led a group of people...