#7320 - Implied Freedom Of Political Communication - Federal Constitutional Law

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Facts: The publisher of The Australian was prosecuted under s 299(1)(d)(ii) of the IR Act which provided that “A person shall not…by writing or speech use words calculated…to bring a member of the IRC or the Commission into disrepute.

Held: s 299(1)(d)(ii) was invalid. However only Brennan, Deane, Toohey and Gaudron JJ (4) adopted the view that even if s 299(1)(d)(ii) was within power, it was nevertheless invalid as infringing an implied freedom of political discussion

Deane and Toohey J:

• Noted that three general doctrines of government underlie the Constitution – two of which are the concept of a federal system, and the separation of powers

  • Past cases have been directed to these doctrine – e.g. the implication from the terms of the Constitution (and its implied federal system within) that legislative/executive powers conferred on the CTH are confined to the extent necessary to preclude their use in a manner inconsistent with the continued existence of independent State or their capacity to function as such

• It is from these implications that a third general doctrine, the “doctrine of representative government”, flows. That is, a government by representatives directly or indirectly elected by and ultimate responsible to the people of the CTH

• In doing so the Constitution reserves to the people the ultimate power of government control through two processes – election of Parliament and amendment of the Constitution

  • Under the Constitution these powers are exercisable by direct vote (ss 7, 24, 129)

  • Even though exceptions do exist (e.g. to protect smaller States), the general effect of the Constitution is that all citizens not under a special disability are entitled to share equally in the exercise of these powers

• The people would be unable to exercise this power if they were unable to communicate

  • The discharge of voting involves communication – both in the ability to vote intelligently (which exists only if the identity of candidates and the content of a proposed law submitted for the decision of people at a referendum can be communicated to the voted) and the ability to cast a fully informed vote (which depends on the ability of people requiring information about candidates and other considerations that are relevant to their decision as to what is in the interests of the nation

  • The doctrine of representative government isn’t just concerned with electoral processes – its central thesis is that the powers of the government belong to the people. The repositories of governmental powers under the Constitution hold them as representatives of the people under a relationship between representative and represented to communicate information/views

    • It further presupposes an ability of people of the CHT to communicate amongst themselves, information and opinions about matters necessary to discharging government powers on their behalf

• Hence the doctrine operates at two levels – the level of communication between representatives and represented and the freedom of communication between the people of the CTH

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Facts: This case involved a challenge to the validity of the Political Broadcasts and Political Disclosures Act that added Pt IIID dealing with “Political Broadcasts” to the Broadcasting Act. S 95B imposed a blanket prohibition on political advertisement during the election (and under s 95C for Territories, State and local under s 95D). Exceptions were made for policy launches, news, current affairs, talk back radio etc. that didn’t “explicitly advocate” vote for a candidate/party

Div 3 of Pt IIID established a scheme of “free time” for political advertising, allocated to the parties by the ABT. 90% of this time was reserved for parties represented in the previous parliament. Units of free time could be used for limited purposes (2 minute telecast/1 minute radio with a picture of the speaker’s head/shoulders).

It was accepted that Pt IIID fell within s 51(v) (Postal power) or the CTH’s power with respect to federal elections. The question was hence whether it was invalid due to infringement of a constitutionally guaranteed freedom of political discussion.

Mason CJ, Deane, Toohey and Gaudron JJ held that Pt IIID was wholly invalid on this basis. McHugh held it was invalid on this basis except in relation to s 95C on territories. Dawson J rejected this idea. Brennan J agreed that the implication existed but held the provisions were valid as a reasonable restriction upon it.

Mason CJ:

Constitutional Implications

• His honour disagreed with the notion that the Engineer’s Case supported a proposition that implications from the constitution could not be made – indeed they have been used to justify rules based on federalism (as above)

• But the implication must be securely based

  • However his honour thought that statements to the effect that “ordinary principles of construction” looking only at the “actual meaning” for “necessary implications” were too restrictive. This would deny the very basis, the federal nature of the Constitution, from which the Court has already implied restrictions on CTH/State powers’

  • It may not be right to say that no implication will be made unless it is necessary

    • In cases where the implication is sought to be derived from the actual terms fo the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation

    • But in cases where the implication is structural, the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure

• It is essential to keep in mind the difference between implications (which inhere in the instrument and operate as part of the instrument) and unexpressed assumptions (that stand outside the instrument)

  • E.g. an assumption that the Senate would protect the States did not happen but responsible government is more than an assumption – it is an integral element in the Constitution

His honour then acknowledged that the framers rejected the US model of constitutional rights, leaving the protection of liberty to responsible government and common law

• It is difficult to establish a foundation for the implication of general guarantees of fundamental rights as this would run contrary to the sentiment of the framers - this sentiment, though, was an unexpressed assumption

  • But this is no answer to the plaintiff’s argument of necessary implication from provisions establishing representative government

  • It is Plaintiff’s Argument that freedom of expression in relation to public and political affairs is an essential concomitant of representative government – it is necessary implied from prescription of this system

Representative Government

• His honour discussed the provisions creating representative government in the Constitution – particularly noting s 24 that the HOR be composed of members “directly chosen by the people of the Cth” and s 25 making it clear that “chosen” means “voting by election”

• As discussed in A-G (ex rel McKinlay) v Cth – even though prescription of qualification for electors is left to parliament for determination, the Constitution nevertheless brought into existence a representative government in which those who exercise legislative/executive power are directly chosen by the people

• The very concept of representative government/democracy signifies government by people through their representatives – it denotes the sovereign power residing in the people exercised by their representatives.

His honour the noted one objection to this idea of sovereignty – namely that the Constitution was given force by an Act of Imperial Parliament and not a supreme law proceeding from the people’s power to constitute a government. He noted that, despite its initial character the Constitution brought into existence a system off representative government through which elected representatives exercise sovereign power on behalf of the people.

• And more recently the Australia Act marked the end of the legal sovereignty of the Imperial Parliament and recognized sovereignty in the people

Freedom of communication as an indispensable element in representative government

• Indispensable to notions of accountability inherent in representative government is freedom of communication, at least in relation to public affairs and political discussion

  • Only by exercising this can citizens communicate views relevant to political action, and criticize government decisions and actions that seek to bring...