What is political speech? Levy v. Victoria
Max Spry
Law and Bills Digest Group
August 1997
Political participation in Australian democracy is not limited to the
casting of votes for parliamentary representatives. For example, members
of the community lobby their representatives, join political parties and
make donations to pressure groups. From time to time individuals and groups
take more direct action. They stage demonstrations and protests to draw
attention to their cause, whether it be to stop abortions or to preserve
the environment.
In early 1995 Parliament House was blockaded by loggers protesting restrictions
placed on the logging of certain forests pending an evaluation of their
environmental status. In August 1996 protests about changes to workplace
relations law resulted in injury and property damage at Parliament House.
The Joint Standing Committee on the National Capital and External Territories
in May 1997 completed a report entitled A Right to Protest. The
Report noted 'a strong community expectation that a right to protest should
be acknowledged as a fundamental principle of Australian society' (p xv).
It recommended, amongst other things, that in certain circumstances a
permit be obtained where a structure is to be placed on national land
as part of a protest (p xx). Does the Commonwealth have the capacity to
place such limitations on protests or demonstrations in Australia? Would
such restrictions impinge on the guarantee of political communication
implied into the Constitution?
In the now well known, but nevertheless, still somewhat controversial
decisions, Australian Capital Television v Commonwealth
[(1992) 177 CLR 106] and Nationwide News v Wills [(1992) 177 CLR
1] the High Court in 1992 recognised an implied guarantee of communication
on political matters in the Constitution. The guarantee was discussed
in relation to defamation law in 1994 in Theophanous v Herald and Weekly
Times Ltd [(1994) 182 CLR 104], in Stephens v West Australian Newspapers
[(1994) 182 CLR 211], and earlier this year in Lange v ABC [(1997)
145 ALR 96].
In Levy v Victoria, handed down on 31 July 1997, the High Court
considered the extent to which the implied constitutional freedom of political
communication protects conduct. Does the implied constitutional freedom
restrict the Commonwealth's capacity to pass laws limiting political protests?
Levy: The Facts
Levy's case involves legislation passed by the Victorian, not
the Commonwealth Parliament. Regulations made under the Victorian Wildlife
Act 1975 and the Conservation, Forests and Lands Act 1987 made
it an offence to be within an area set aside for the hunting of game birds
at the beginning of the hunting season without a licence. Mr Laurence
Levy had for some time opposed duck shooting in Victoria. In early June
1994, at the commencement of the duck shooting season, he was charged
with being in a hunting area during a prohibited time without a licence.
Mr Levy claimed he was in the area at the relevant time to collect dead
and wounded ducks legally shot, as well as dead and wounded endangered
species illegally shot. He also argued that he was attempting to draw
the media's attention to the cruelty associated with duck shooting and
to influence the Victorian peoples political judgment towards their Government's
continued support of duck shooting.
Mr Levy argued that the regulation under which he was charged was invalid
as it infringed the implied freedom of political communication. In six
separate judgments, all seven members of the High Court rejected Mr Levy's
argument and upheld the validity of the regulation.
The Decision
Chief Justice Brennan observed that given speech is often used to convey
ideas about political issues, it is natural to consider the implied constitutional
freedom of political communication 'as a freedom of speech'. But ideas
may be articulated in various ways, by deeds or conduct as well as in
words. The constitutional implication, his Honour said:
denies legislative or executive power to restrict the freedom of communication
about the government or politics of the Commonwealth, whatever be the
form of the communication, unless the restriction is imposed to fulfil
a legitimate purpose and the restriction is appropriate and adapted
to the fulfilment of that purpose.
Justices Toohey and Gummow also expressly stated their belief that the
implied freedom of political communication 'may extend to conduct where
that conduct is a means of communicating a message within the scope of
the freedom.' Similarly, Justice McHugh noted the importance of signs,
symbols and images in conveying ideas and opinions and hence the implied
freedom 'is not limited to verbal utterances.' While mindful of the differences
between Australian and United States constitutional law, Justice Kirby
usefully summarises the United States jurisprudence on freedom of speech.
The Court made it clear in Levy, as it had done in earlier cases,
that the implied freedom is not absolute. Chief Justice Brennan, for example,
noted that:
non-verbal conduct which is capable of communicating an idea about
the government or politics of the Commonwealth and which is intended
to do so may be immune from legislative or executive restriction so
far as that immunity is needed to preserve the system of representative
and responsible government that the Constitution prescribes.
Conduct, even though aimed at expressing ideas about political issues
or the government, may in some cases need to be restricted in the public
interest. Chief Justice Brennan cites as an example a law that banned
bonfires in the interests of safety would not cease to be valid simply
because someone sought to burn a political effigy. His Honour stated:
A law which prohibits non-verbal conduct for a legitimate purpose other
than the suppressing of its political message is unaffected by the implied
freedom if the prohibition is appropriate and adapted to the fulfilment
of that purpose. Such a law prohibiting or controlling the non-verbal
conduct, if it be reasonable in extent, does not offend the constitutional
implication.
Laws which are reasonably appropriate and adapted to achieving some legitimate
purpose, such as the protection of life, will not be invalid if they should
also detract from the freedom to discuss political matters.
Justice Gaudron stated that whether a law that impinges on the implied
freedom is valid depends on the purpose of the law. If the law is aimed
directly at restricting communication on political matters, it will only
be valid if it is necessary to achieve 'some overriding public purpose.'
If it has some other legitimate end and only incidentally infringes the
implied freedom, 'it is valid if it is reasonably appropriate and adapted
to that other purpose.'
In this case, the Victorian Parliament placed restrictions on who may
be present in a duck hunting area at the beginning of the hunting season.
As Justice Dawson stated, although the regulation restricted the freedom
of communication, it was 'appropriate and adapted to serve the legitimate
end of ensuring the safety of persons with conflicting aims' likely to
be in the area.
Are State issues protected by the Constitutional implication
In Lange the Court adopted a very broad view as to the nature
and content of political discussion protected by the implied constitutional
freedom. Discussion of State political issues is covered by the implication
because of the integration of Australian social and economic life. Significantly
in Levy, however, Chief Justice Brennan indicated that there may
yet be some boundaries to be drawn by the Court. His Honour said that
it may be arguable that the shooting of a protected species might trigger
Australia's treaty obligations and therefore the subject matter at issue
is of direct relevance to the Commonwealth. Chief Justice Brennan said
that he would reject such an approach.
Conclusion
The implied constitutional freedom of political communication is not
absolute. Laws that may restrict such communication may be valid if they
are appropriate and adapted to achieving some legitimate end. What is
appropriate will need to be tested in individual cases. The recommendation
made in the Joint Standing Committee report, A Right to Protest,
noted above, would seem to be on safe ground. But would, for example,
a law banning environmentalists from entering certain areas of forest
for safety reasons be valid? Further, comments made by Chief Justice Brennan
as to the content of the freedom will most likely be revisited in later
cases.
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