A counterpart implication could be derived from the system of
representative government created by the Western Australian
Constitution. Section 73(2) of the Constitution Act 1889
(WA) entrenches Western Australian laws, including the Western
Australian Constitution itself, against Bills of the several kinds
specified in the provision.(25) This includes, in section
73(2)©, a Bill that 'expressly or impliedly provides that the
Legislative Council or the Legislative Assembly shall be composed
of members other than members chosen directly by the people'. In
Stephens, Brennan CJ stated that section 73(2)©:
entrenches in the Constitution
Act the requirement that the Legislative Council and the
Legislative Assembly be composed of members chosen directly by the
people. This requirement is drawn in terms similar to those found
in ss 7 and 24 of the Commonwealth Constitution from which the
implication that effects a constitutional freedom to discuss
government, governmental institutions and political matters is
substantially derived. By parity of reasoning, a similar
implication can be drawn from the Constitution Act with
respect to the system of government of Western Australia therein
prescribed.(26)
The effect of Stephens was to establish that the laws
of the States can be affected by the implied freedom of political
discussion. In some cases, this will be due to the freedom derived
from the Commonwealth Constitution flowing down. In others, the
exclusive State nature of the relevant political discussion may
mean that it can only be protected by an implication derived from
the particular State Constitution. The question of which State
Constitutions can support such an implication will however need to
be determined on a case-by-case basis.(27)
The 1996 decisions - consolidation or cutback?
The most recent decisions of the High Court on the implied
freedom, McGinty v Western Australia,(28) Langer v
Commonwealth(29) and Muldowney v South Australia,(30)
were handed down in 1996. In Muldowney it was argued that,
just as a counterpart implication could be derived from the Western
Australian Constitution, so could one be derived from the South
Australian Constitution. However, the Solicitor-General for South
Australia conceded that the South Australian Constitution contains
such an implication 'in like manner to the Commonwealth
Constitution',(31) meaning that the High Court did not need to
decide the issue.(32) The provision impugned in Muldowney,
s126(1)(b) and © of the Electoral Act 1985 (SA),
which made it an offence to encourage voters to fill in or mark
their ballot paper other than in accordance with the prescribed
method, was held to be valid. Gaudron J stated that the implied
freedom:
does not operate to strike down a law which curtails freedom of
communication in those limited circumstances where that curtailment
is reasonably capable of being viewed as appropriate and adapted to
furthering or enhancing the democratic processes of the
States.(33)
In Langer, a majority of the Court found that section
329A of the Commonwealth Electoral Act 1918 (Cth) was
valid. Section 329A was a provision of similar effect to that
considered in Muldowney. While the majority dealt briefly
with the implied freedom of political discussion and narrowly
construed the freedom in finding that it did not invalidate the
provision, it was not strictly necessary for the Court to examine
the issue as it was not argued by the plaintiff.(34)
McGinty was the most significant of the three cases
decided in 1996. The plaintiffs in that case argued that just as
sections 7 and 24 of the Constitution could support the implied
freedom of political discussion, so could the sections support a
guarantee of voter equality.(35) They argued that this guarantee
rendered invalid the electoral boundaries operating in Western
Australian State elections.(36) The argument failed. A majority of
the Court held that no guarantee of voter equality could be
discerned from either the Commonwealth or Western Australian
Constitutions. McGinty was a significant decision in that
it revealed much about how the current High Court views the implied
freedom of political discussion. In prior cases, the freedom was
derived either from the system of representative government
underlying the Constitution, as recognised by the text and
structure of the Constitution, or from the text and structure
alone. The distinction is an important one if only because it
impacts upon the scope of the freedom. If the freedom is derived
from the text and structure of the Constitution alone, this would
enable the freedom to be narrowly construed as being primarily a
freedom of discussion as regards electoral matters as sections 7
and 24 focus upon the electoral process. This narrow vision of the
freedom was expressed by McHugh J in Australian Capital
Television(37) when he stated that 'the people have a
constitutional right to convey and receive opinions, arguments and
information concerning matter intended or likely to affect voting
in an election for the Senate or the House of Representatives'. It
was expressed even more narrowly by Dawson J in
Theophanous, when he argued that sections 7 and 24 do no
more than confer upon electors the ability to make 'a genuine, or
informed, choice'.(38) On the other hand, Deane and Toohey JJ
viewed the freedom broadly as being based upon the system of
representative government underlying the Constitution rather than
merely upon the bare text of sections 7 and 24. As they stated in
Nationwide News:
[T]he doctrine of representative government which the
Constitution incorporates is not concerned merely with electoral
processes. As has been said, the central thesis of the doctrine is
that the powers of government belong to, and are derived from, the
governed, that is to say, the people of the Commonwealth.'(39)
This broad view was criticised in McGinty on the basis
that it involved drawing implications from implications, that is,
that the implied freedom would be an implication from the system of
representative government which is itself an implication from the
Constitution, including sections 7 and 24.(40) Equally, this
criticism could be attacked for taking an unduly narrow and
artificial view of constitutional interpretation, one that does not
take account of the need of the interpreter to rely upon material
other than the text, such as the existing structures created by the
Constitution and the values underpinning it.
The majority in McGinty, Brennan CJ, Dawson, McHugh and
Gummow JJ, established that the implied freedom should be seen as
being derived from the text and structure of the Constitution
alone. They argued that the freedom should not be seen as being
shaped by any concept, such as representative democracy, that may
underlie the Constitution. Rather, the freedom can be derived from
the 'the text and structure of Pts II and III of Ch I of the
Constitution and, in particular, from the provisions of ss 7 and
24'.(41) According to Brennan CJ:
It is logically impermissible to treat 'representative
democracy' as though it were contained in the Constitution, to
attribute to the term a meaning or content derived from sources
extrinsic to the Constitution and then to invalidate a law for
inconsistency with the meaning or content so attributed.(42)
This approach represented an important change from the approach
of a differently constituted majority in earlier cases,
particularly the majority of Mason CJ, Deane, Toohey and Gaudron JJ
in Theophanous. It also indicated that the current High
Court will take a restrictive approach to the implied freedom and
can be expected to construe it narrowly, restricting it to the
electoral context provided by sections 7 and 24 of the
Constitution, as put forward by Dawson and McHugh JJ in earlier
cases. The reasoning also casts some doubt upon the earlier
decisions of Theophanous and Stephens. In
McGinty, McHugh J, with some support from Gummow J,
suggested that the use of the implied freedom in
Theophanous to override the common law should be
reconsidered. Dawson J invited counsel to take up this challenge in
the hearing of Levy v Victoria.(43) The invitation was
accepted by the Solicitor-General for Victoria and the High Court
will hear argument in March 1997 on whether Theophanous
and Stephens should be overruled.(44)
Even if the Court decides to overrule Theophanous and
Stephens, its earlier decisions on the implied freedom are
not under challenge. Some form of implied freedom of political
discussion will continue to stand, even if its impact is narrowed
by the Court or if the Court takes, as did Brennan J in
Australian Capital Television, a robust attitude to the
leeway to be granted to the Parliament. If it is narrowed to the
electoral process to the exclusion of other forms of political
discussion this may even mean a higher degree of scrutiny where
electoral laws overstep the line. It is thus important to
understand how the implied freedom operates and what approach the
Court might adopt in setting the boundaries of legislative action
to restrict speech in the electoral process.
Applying the constitutional freedom - a 'how-to' guide
For a law to be inconsistent with the implied freedom of
political discussion it must first be shown that it impinges upon
political discussion and secondly that it does not adequately
serve, or is disproportionate in its impact upon political
discussion in serving, some other legitimate purpose. It is
obviously very difficult to determine exactly when speech falls
within the ambit of political discussion. In Theophanous
Mason CJ, Toohey and Gaudron JJ spoke of 'the absence of any limit
capable of definition to the range of matters that may be relevant
to debate in the Commonwealth Parliament and to its workings'(45)
and suggested that whether speech fell inside or outside the
freedom should be determined on a case by case basis. However, they
did state that:
For present purposes, it is sufficient to say that 'political
discussion' includes discussion of the conduct, policies or fitness
for office of government, political parties, public bodies, public
officers and those seeking public office. The concept also includes
discussion of the political views and public conduct of persons who
are engaged in activities that have become the subject of political
debate, eg, trade union leaders, Aboriginal political leaders,
political and economic commentators.(46)
The width of the freedom was further demonstrated by their
adoption of Barendt's statement that:
'political speech' refers to all speech relevant to the
development of public opinion on the whole range of issues which an
intelligent citizen should think about.(47)
The potential width of the freedom was also demonstrated by the
decision in Cunliffe. In that case, Mason CJ, Deane,
Toohey and Gaudron JJ found that the implication protected the
giving of immigration assistance and the making of immigration
representations.(48)
Even given the narrowing effect of McGinty and the
possible overturning of Theophanous and Stephens
by the High Court, it is clear that the electoral process, and
particularly public discussion of the performance, conduct and
fitness for office of candidates for Parliament, will continue to
be protected by the constitutional freedom. Bans on canvassing near
polling places clearly lie at the core of what the freedom
protects. They do so because they affect speech on the suitability
of candidates for office and thus the choice to be made by electors
under sections 7 and 24 of the Constitution.
Where a statute impinges upon political discussion, say, for
example, by proscribing political advertising during election
periods, the High Court will examine whether the law can
nevertheless be justified. It determines this by applying a test of
reasonable proportionality.(49) This test was first applied to
determine the scope of the Commonwealth's external affairs power in
section 51(xxix) of the Constitution,(50) but has since been
applied in other areas.(51) Selway has summarised the operation of
this test as follows:
Where there is a constitutional guarantee, immunity or
limitation upon power and a balance needs to be struck to ascertain
whether a relevant law falls within the guarantee, immunity or
limitation or not, the test is whether the law is reasonably
capable of being seen as appropriate and adapted to achieving a
legitimate purpose and the impairment of the constitutional
guarantee, immunity or limitation is merely incidental to that
purpose. However, it may be that some judges would apply a broader
test of whether the law is appropriate and adapted to a legitimate
purpose. (52)
Deane J in Cunliffe stated that the outcome of the
reasonable proportionality test 'will ultimately depend upon an
assessment of the character (including purpose), operation and
effect of the particular law'.(53) In Australian Capital
Television Mason CJ suggested that a restriction or
prohibition that targets ideas or information will be more
difficult to sustain than a restriction or prohibition that targets
an activity or mode of communication by which ideas or information
are transmitted. He stated that where a law targets ideas or
information:
only a compelling justification will warrant the imposition of a
burden on free communication by way of restriction and the
restriction must be no more than is reasonably necessary to achieve
the protection of the competing public interest which is invoked to
justify the burden on communication. Generally speaking, it will be
extremely difficult to justify restrictions imposed on free
communication which operate by reference to the character of the
ideas or information.(54)
Where a statute does not meet the reasonable proportionality
test, only Brennan J has been prepared to afford the Parliament a
further 'margin of appreciation'.(55) This additional leeway was
one factor that accounted for Brennan J's dissent in Australian
Capital Television, where he was the only judge who recognised
the implied freedom of political discussion but yet also found the
relevant legislation to be valid.
A common feature of electoral laws across Australia is a ban
within a certain area of the ballot box on the influencing of
electors through, for example, the handing out of how-to-vote
cards, the placing of posters and discussions between voters and
representatives of parties or candidates. Section 340(1) of the
Commonwealth Electoral Act 1918 (Cth) provides:
The following acts are, on polling day, and on all days to which
the polling is adjourned, prohibited at an entrance of or within a
polling booth, or in any public or private place within 6 metres of
an entrance of a polling booth, namely:
(a) canvassing for votes; or
(b) soliciting the vote of any elector; or
(c) inducing any elector not to vote for any particular
candidate; or
(d) inducing any elector not to vote at the election; or
(e) exhibiting any notice or sign (other than an official
notice) relating to the election.
Penalty: $500
The electoral legislation of every State, except New South
Wales, contains an equivalent provision as to State elections(56)
and local government elections.(57) There is also an equivalent
provision in the electoral legislation of the Northern
Territory(58) and the Australian Capital Territory.(59) There are
additional restrictions in some States which require certain
electoral material to be registered. For example, Victorian
legislation bans the handing out of printed electoral material
within 400 metres of the entrance to a polling booth except for
registered how-to-vote cards,(60) and in New South Wales the
distribution of electoral material in public places is banned
unless such material has been registered.(61)
There are important differences in the scope of these laws. The
provisions in Queensland, South Australia, Victoria and Western
Australia are clearly either modelled on or are similar in effect
to section 340(1) of the Commonwealth legislation and proscribe
campaigning within 6 metres of the entrance to the polling booth.
Similarly, the equivalent provision in the Northern Territory sets
a distance of 10 metres. On the other hand, the provisions in
Tasmania and the Australian Capital Territory proscribe such
activities within 100 metres of the booth. The most restrictive of
these provisions is that in place in the Australian Capital
Territory, which does not merely restrict the canvassing or
soliciting or votes within the 100 metre radius, but operates much
more widely.
The ACT provision
The Electoral Act 1992 (ACT) was amended in 1995 to
introduce a ban on canvassing within a 100 metre radius of polling
booths during Australian Capital Territory elections.(62) Section
303 of that Act now provides:
1. A person shall not, during polling hours within the defined
polling area in relation to a polling place-
a) do anything for the purpose of influencing the vote of an
elector as the elector is approaching, or while the elector is at,
the polling place;
b) do anything for the purpose of inducing an elector not to
vote as the elector is approaching, or while the elector is at, the
polling place; or
c) exhibit a notice containing electoral matter which is able to
be clearly seen by electors approaching, or at, the polling place,
other than a notice authorised by the [Australian Capital Territory
Electoral] Commissioner for display there.
Penalty: 5 penalty units [$500(63)].
2. If the building in which a polling place is located is
situated on grounds within an enclosure, the Commissioner may, by
notice published in the Gazette, specify the boundary of
that enclosure for the purposes of paragraph (b) of the definition
of 'defined polling area' in subsection (6).
...
6. In this section-
'defined polling area', in relation to a polling place, means
the area-
a) within the building in which the polling place is located,
and within 100 metres of the building; or
b) if the Commissioner issues a notice under subsection (2) in
relation to the polling place - within the boundary of the
enclosure specified in the notice, and within 100 metres outside
that boundary.
In presenting the amendments to the Australian Capital Territory
Legislative Assembly, the Attorney-General, Mr Humphries, stated
that the 100 metre canvassing prohibition was aimed at 'reducing
the influence of party machines on election and referendum
outcomes'.(64) The provision was modelled on that operating in
Tasmania,(65) the jurisdiction from which the Australian Capital
Territory derived its 'Hare-Clark' electoral system. However, while
the provision may be modelled on that in Tasmania, it goes further
than that provision. The Tasmanian provision restricts the
canvassing and soliciting of votes while section 303 affects the
doing of 'anything for the purpose of influencing the vote of an
elector as the elector is approaching, or while the elector is at,
the polling place'. The Attorney-General also referred to other
benefits of the provision, which included 'a reduction in wastage
of paper used in how-to-vote cards', 'removing the advantage
currently enjoyed by those parties and candidates with the
resources to print and distribute material widely on polling day'
and 'removing a source of irritation to voters entering polling
places'.(66)
Paragraph 303(1)(a) was obviously intended to apply to overt
'canvassing' activities, such as the distribution of how-to-vote
cards and candidates greeting and chatting with constituents as
they arrive at the polling place. It thus outlaws within the 100
metre radius the setting up of a stall for the purpose of answering
voters' questions on policy issues and the placement of posters
with the picture of a candidate. The law prevents candidates and
political parties from engaging in traditional means of
communicating their policies and fitness for office to electors.
However, the law potentially has an even greater effect.(67)
Section 303 is drawn in terms wide enough to encompass many others
activities, including those that might be beyond the intended scope
of the law. Strictly, the provision will apply to the private
conduct of voters and passers-by, with the 100 metre radius perhaps
even including persons approaching the polling booth in cars. The
effect of sub section 303(6) may be to extend the radius to include
private homes. This would mean that the law makes it an offence to
engage in a private conversation with a family member or friend
about the merits of particular candidates or policies while queuing
to vote if the intention is to affect the vote of that other
person.
The bans on canvassing in place across Australia, and those in
the Australian Capital Territory and Tasmania in particular,
obviously restrict freedom of political discussion. The laws
restrict directly the ability of voters to discuss matters relating
to the suitability for office of candidates and to ask questions of
candidates or their representatives as to their policies or as to
how best to cast a preferential vote. Moreover, the provisions
arguably target ideas or information rather than being a manner and
form limitation upon how political speech can be exercised.
The Australian Capital Territory provision is obviously in most
danger of invalidity. It could be saved only if it satisfies the
reasonable proportionality test. However, it is difficult to see
how it could do so if the approach of the majority in
Australian Capital Television were to be applied. Like the
law found invalid in Australian Capital Television,(68)
the restriction on political discussion is not an incidental aspect
of section 303, but is the very object of the law. Nor is section
303 closely tailored to restricting only certain forms of
canvassing for votes. Instead, the law has a potentially draconian
effect and is of wider scope than other comparable laws across
Australia in the conduct affected and, apart from Tasmania, in the
radius set down. If an objective of section 303 is to prevent the
intimidation of electors, this aim might have been met with a more
focussed law. For example, section 341 of the Local Government
Act 1993 (Qld) states that: 'A person may not, by violence or
intimidation, influence a person's vote at an election'.
Section 303 might also be viewed as having a discriminatory
effect.(69) It has the potential to make it harder for some
interest groups, such as Friends of the ABC or Friends of Albert
Langer or others, which have disseminated information at polling
booths at Australian elections in the past, to have their voices
heard at minimal cost. A likely consequence of the law is that
people or parties wishing to influence voters by handing out a
how-to-vote card will be forced to use the postal system or larger
numbers of volunteers to distribute such material. This has the
potential to force candidates to adopt more expensive campaigning
techniques or to seek a larger number of volunteers to hand out
information around the 100 metre radius. To draw an analogy with
the law held invalid in Australian Capital Television, the
restrictions imposed by section 303 'directly exclude potential
participants in the electoral process from access to an extremely
important mode of communication with the electorate'.(70) Moreover,
as McHugh J stated in Australian Capital Television:
[H]aving regard to the conceptions of representative government,
Parliament has no right to prefer one form of lawful electoral
communication over another. It is for the electors and the
candidates to choose which forms of otherwise lawful communication
they prefer to use to disseminate political information, ideas and
argument. Their choices are a matter of private, not public,
interest. Their choices are outside the zone of governmental
control.(71)
This statement might equally counter the argument that section
303 is valid because it leaves open other avenues for the
distribution of campaign material.(72)
It would seem that section 303 may be invalid. This result
would, however, depend upon an implied freedom being found at the
Territory level, either due to the Commonwealth Constitution
flowing down or because a counterpart implication can be derived
from the Australian Capital Territory (Self-Government)
Act 1988 (Cth). As section 303 has not been in operation
during an election in the Australian Capital Territory it has yet
to be challenged, in part because there is no person with
sufficient standing to do so. This conclusion does not mean that
parliaments cannot place any restrictions upon canvassing or like
activities near polling booths. Indeed, with the exception of the
Tasmanian provision, which also sets a radius of 100 metres, it
would seem likely that the provisions in the other States would be
valid under the reasonable proportionality test.
United States authority
The United States Supreme Court has considered a wide variety of
electoral laws through the lense of the First Amendment right to
free speech in the United States Constitution.(73) In the 1992 case
of Burson v Freeman(74) the Supreme Court dealt with the
validity of a Tennessee provision that restricted canvassing within
100 feet of a polling place. A 5:3 majority held that the
restriction was not a violation of the First Amendment right to
free speech.
The majority in Burson v Freeman found the Tennessee
provision to be a content-based restriction on speech, that is, one
targeting ideas or information, as opposed to one directed merely
toward the time, place and manner of communication. This meant
that, to be valid, the law needed to survive the Court's 'exacting
scrutiny' test, according to which a provision must serve a
'compelling state interest' and be drawn as narrowly as possible to
achieve that end.(75) Applying the test, the majority found that
this was a 'rare case' where there was a compelling state interest
in preventing voter intimidation and electoral fraud and that the
Tennessee provision was suitably drawn to achieve that end.(76)
However, the leading judgment of Blackmun J also stated that: 'At
some measurable distance from the polls, of course, governmental
regulation of vote solicitation could effectively become an
impermissible burden'.(77) The implication of this was that if the
law had set a distance substantially greater than 100 feet, the law
would have been invalid.
One hundred metres, the distance specified in the Australian
Capital Territory and Tasmanian provisions, is a little over three
times 100 feet, the distance specified in the Tennessee provision.
Were the United States Supreme Court to deal with something closer
to the Australian Capital Territory and Tasmanian provisions it
would be likely to find that the laws were invalid as placing too
high a burden on free speech. Given the similarities between that
Court's 'exacting scrutiny' test and the High Court's
'proportionality' requirement as applied to laws that target ideas
or information, the High Court may well find Burson v
Freeman to be a persuasive authority.(78)
Legislators at the Federal level, in the States and in the
Territories need to be aware of the limits imposed by the implied
freedom of political discussion. More than in perhaps any other
area, they need to be cautious of the scope of the freedom when
formulating restrictions on discussion during electoral periods.
This paper shows that legislation carefully and proportionately
targeted to meet some other purpose, such as the purpose of
ensuring free and fair elections, will survive the scrutiny of the
constitutional freedom. Free speech and the regulation of electoral
canvassing need not be in conflict.
- 177 CLR 106.
- Legal, Constitutional and Administrative Review Committee,
Truth in Political Advertising (Report No 4, December
1996) at 29.
- See also Joint Standing Committee on Electoral Matters, Who
Pays the Piper Calls the Tune (June 1989); Joint Standing
Committee on Electoral Matters, Report on the Effectiveness and
Appropriateness of the Redistribution Provisions of Parts III and
IV of the Commonwealth Electoral Act 1918 (December
1995).
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 143 per Mason CJ ('ordinarily paramount
weight would be given to the public interest in freedom of
communication').
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 159. See ibid at 175 per Deane and Toohey
JJ.
- See Joint Standing Committee on Electoral Matters, Report
on the Effectiveness and Appropriateness of the Redistribution
Provisions of Parts III and IV of the Commonwealth Electoral Act
1918 (December 1995) at 44.
- For an example of a report that does this, see Legal,
Constitutional and Administrative Review Committee, Truth in
Political Advertising (Report No 4, December 1996).
- In its unresolved 'Inquiry into Push Polling', one of the
issues before the Joint Standing Committee on Electoral Matters of
the Federal Parliament was whether section 350 of the
Commonwealth Electoral Act 1918 (Cth) could stand in light
of the implied freedom. See Joint Standing Committee on Electoral
Matters, Push Polling - Submissions, Nos 7 (Australian
Electoral Commission) and 11 (G Williams).
- See, for example, Commonwealth Electoral Act 1918
(Cth), 'Part XXI - Electoral Offences'.
- The implied freedom of political discussion was also recognised
in Nationwide News, a case handed down on the same day as
Australian Capital Television. The implied freedom was
arguably foreshadowed by several judgments of Murphy J, such as
that in Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR
556. See L Campbell, 'Lionel Murphy and the Jurisprudence of the
High Court Ten Years On' (1996) 15 U Tas LR 22; M Kirby,
'Lionel Murphy and the Power of Ideas' (1993) 18 Alt LJ
253 at 256. Cf G Williams, 'Lionel Murphy and Democracy and Rights'
in M Coper and G Williams (eds), Justice Lionel Murphy -
Influential or Merely Prescient? (forthcoming).
- Dawson J was the only judge not to do so. See also
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. For
analysis and discussion of these decisions, see Symposium:
Constitutional Rights for Australia? (1994) 16 Syd LR
145; DZ Cass, 'Through the Looking Glass: the High Court and the
Right to Speech' (1993) 4 PLR 229; G Kennett, 'Individual
Rights, the High Court and the Constitution' (1994) 19
MULR 581.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 139 per Mason CJ ('Freedom of communication
in relation to public affairs and political discussion'), at 149
per Brennan J ('freedom of discussion of political and economic
matters'), at 168 per Deane and Toohey JJ ('freedom within the
Commonwealth of communication about matters relating to the
government of the Commonwealth'), at 212 per Gaudron J ('freedom of
political discourse'), at 233 per McHugh J ('right of the people to
participate in the federal election process').
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 132. See ibid at 221 per Gaudron J.
- 182 CLR 104.
- 182 CLR 211.
- 182 CLR 272. For commentary on these decisions, see TH Jones,
'Comment: Legislative Discretion and Freedom of Political
Communication' (1995) 6 PLR 103; HP Lee, 'The Australian
High Court and Implied Fundamental Guarantees' [1993] Public
Law 606; A Twomey, 'Theophanous v Herald & Weekly Times
Ltd; Stephens v West Australian Newspapers Ltd' (1994) 19
MULR 1104; FA Trindade, '"Political Discussion" and the
Law of Defamation' (1995) 111 LQR 199; G Williams,
'Engineers is Dead, Long Live the Engineers!' (1995) 17
Syd LR 62.
- Cf Australian Capital Television Pty Ltd v
Commonwealth (1992) 177 CLR 106 at 217, where Gaudron J
stated: 'As the implied freedom is one that depends substantially
on the general law, its limits are also marked out by the general
law. Thus, in general terms, the laws which have developed to
regulate speech, including the laws with respect to defamation,
sedition, blasphemy, obscenity and offensive language, will
indicate the kind of regulation that is consistent with the freedom
of political discourse.'
- See G Carney, 'The Implied Freedom of Political Discussion -
Its Impact on State Constitutions' (1995) 23 FL Rev
180.
- Stephens v West Australian Newspapers Ltd (1994) 182
CLR 211 at 232 per Mason CJ, Toohey and Gaudron JJ.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 142 per Mason CJ, 168-169 per Deane and
Toohey JJ, 215-217 per Gaudron J.
- Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at
75-76 per Deane and Toohey JJ.
- Theophanous v Herald & Weekly Times Ltd (1994) 182
CLR 104 at 122 per Mason CJ, Toohey and Gaudron JJ, at 164 per
Deane J.
- Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at
75.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 142, 217. Cf ibid at 246 per McHugh J
('nothing in the Constitution suggests to my mind that there is any
implied right of freedom of expression or communication within a
Territory or any right in a Territory arising from the institutions
of representative government and responsible government.')
- Under section 73(2)(f) and (g), such bills must be passed by an
absolute majority of both Houses of the Parliament and be approved
by the electors of the State at a referendum.
- Stephens v West Australian Newspapers Ltd (1994) 182
CLR 211 at 236.
- See Brisbane TV Ltd v Criminal Justice Commission
(unreported, 17 September 1996, Queensland Supreme Court, Court of
Appeal); Cameron v Becker (1995) 64 SASR 238.
- 134 ALR 289.
- 134 ALR 400.
- 136 ALR 18. For commentary on these decisions, see D Ball, 'The
Lion that Squeaked: Representative Government and the High Court:
McGinty & Ors v The State of Western Australia (1996)
18 Syd LR 372; A Twomey, 'Free to Choose or Compelled to
Lie? - The Rights of Voters After Langer v The
Commonwealth' (1996) 24 FL Rev 201; K Walker and K
Dunn, 'Mr Langer is not entitled to be agitator: Albert Langer
v Commonwealth' (1996) 20 MULR 909; G Williams,
'Sounding the Core of Representative Democracy: Implied Freedoms
and Electoral Reform' (1996) 20 MULR 848.
- Muldowney v South Australia (1996) 136 ALR 18 at
23.
- See Cameron v Becker (1995) 64 SASR 238 at 247, 253
where the Full Court of the Supreme Court of South Australia also
did not need to decide the issue. Olsson J did, however, state in
ibid at 247: 'I see no conceptual difference between the
constitution of Western Australia discussed in Stephens
and that of this State.'
- Muldowney v South Australia (1996) 136 ALR 18 at
31.
- Langer v Commonwealth (1996) 134 ALR 400 at 418 per
Toohey and Gaudron JJ.
- See Attorney-General (Cth); ex rel McKinlay v
Commonwealth (1975) 135 CLR 1.
- There were disparities of up to 291% between the number of
voters in each seat in the lower house of the Western Australian
Parliament. In the upper House, the difference was up to 376%. See
McGinty v Western Australia (1996) 134 ALR 289 at
292-293.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 232. See ibid at 234 per McHugh J ('They are
rights conferred for the purpose of enabling the electors to make a
true choice in a free and democratic society.') Interestingly,
McHugh J in ibid at 233 left open the question of whether the
Constitution might confer a 'general right of freedom of
communication in respect of the business of government of the
Commonwealth'.
- Theophanous v Herald & Weekly Times Ltd (1994) 182
CLR 104 at 189. See McGinty v Western Australia (1996) 134
ALR 289 at 304 per Dawson J ('genuine choice').
- Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at
72.
- See N Aroney, 'A Seductive Plausibility: Freedom of Speech in
the Constitution' (1995) 18 University of Queensland Law
Journal 249; S Donaghue, 'The Clamour of Silent Constitutional
Principles' (1996) 24 FL Rev 133; J Goldsworthy,
'Implications in Language, Law and the Constitution' in Lindell, G
(ed), Future Directions in Australian Constitutional Law
(Federation Press, 1994), 150.
- McGinty v Western Australia (1996) 134 ALR 289 at 295
per Brennan CJ. See ibid at 347 per McHugh J.
- Ibid at 295-6.
- Transcript of argument in Levy v Victoria M42 of 1995
at 89-96. In ibid at 40 Dawson J stated: 'It would seem that there
is now not a majority of the Court which would support those
propositions [in Theophanous and Stephens].'
- Argument on this point will also be raised in Lange v
Australian Broadcasting Corporation S109 of 1996.
- Theophanous v Herald & Weekly Times Ltd (1994) 182
CLR 104 at 122.
- Ibid at 124.
- Ibid at 124, quoting Barendt, Freedom of Speech
(Clarendon Press, 1985) p152.
- While Mason CJ, Deane and Gaudron JJ held that the impugned
legislation in Cunliffe was invalid, Toohey J differed in
that he found that the infringement could be justified under the
proportionality test. This meant that in the result the legislation
was held to be valid by a majority consisting of Brennan, Dawson,
Toohey and McHugh JJ. See G Williams, 'Engineers is Dead,
Long Live the Engineers!' (1995) 17 Syd LR 62 at 79.
- See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1;
Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106; Cunliffe v Commonwealth (1994) 182 CLR
272; Muldowney v South Australia (1996) 136 ALR 18;
Leask v Commonwealth (1996) 140 ALR 1; P Bayne,
'Reasonableness, Proportionality and Delegated Legislation' (1993)
67 ALJ 448 at 449452; T Blackshield, G Williams and B
Fitzgerald, Australian Constitutional Law and Theory:
Commentary and Materials (Federation Press, 1996), Ch 10; BF
Fitzgerald, 'Proportionality and Australian Constitutionalism'
(1993) 12 U Tas LR 263; Lee, HP, 'Proportionality in
Australian Constitutional Adjudication' in G Lindell (ed),
Future Directions in Australian Constitutional Law
(Federation Press, 1994), 126; B Selway, 'The Rise and Rise of the
Reasonable Proportionality Test in Public Law' (1996) 7
PLR 212.
- Commonwealth v Tasmania (Tasmanian Dam Case)
(1983) 158 CLR 1 at 172, 259-261, 278; Richardson v Forestry
Commission (1988) 164 CLR 261 at 289, 303, 311-312, 324, 336,
346.
- For example, in determining the scope of sections 92
(Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR
436 at 473-474) and 117 (Street v Queensland Bar
Association (1989) 168 CLR 461 at 573-574) of the Constitution
or the ambit of other Commonwealth powers (Davis v
Commonwealth (1988) 166 CLR 79 at 100; Polyukhovich v
Commonwealth (War Crimes Act Case) (1991) 172 CLR 501
at 592-593; Leask v Commonwealth (1996) 140 ALR 1).
- B Selway, 'The Rise and Rise of the Reasonable Proportionality
Test in Public Law' (1996) 7 PLR 212 at 217.
- Cunliffe v Commonwealth (1994) 182 CLR 272 at
337.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 143. See ibid at 233, 234-235 per McHugh
J.
- Ibid at 159 (citing The Observer and the Guardian v United
Kingdom (1991) 14 EHRR 153 at 178); Theophanous v Herald
& Weekly Times Ltd (1994) 182 CLR 104 at 156.
- Electoral Act 1992 (Qld), section 166; Electoral
Act 1985 (SA) section 125(1); Electoral Act 1985
(Tas), section 133; Constitution Act Amendment Act 1958
(Vic), section 193(1); Electoral Act 1907 (WA), section
192(1).
- Local Government Act 1993 (Qld), section 339;
Local Government Act 1934 (SA), section 129; Local
Government Act 1993 (Tas), section 312(3)(j); Local
Government Act 1989 (Vic), section 53; Local Government
Act 1995 (WA), section 4.89.
- Electoral Act 1993 (NT), section 114.
- Electoral Act 1992 (ACT), section 303.
- Constitution Act Amendment Act 1958 (Vic), section
267P. The penalty set by this section is '$1000 or imprisonment for
a period not exceeding 6 months, or both'.
- Parliamentary Electorates and Elections Act 1912
(NSW), section 151F.
- Electoral (Amendment) Act 1995 (ACT), section 6. See G
Williams, 'Reform Plan a Threat to Responsible Government'
Canberra Times, 6 July 1996.
- Interpretation Act 1967 (ACT), section 33AA.
- Debates of the Legislative Assembly for the Australian Capital
Territory, 9-11 May 1995, at 430.
- Electoral Act 1985 (Tas), section 133.
- Debates of the Legislative Assembly for the Australian Capital
Territory, 9-11 May 1995, at 430. Cf Debates of the Legislative
Assembly for the Australian Capital Territory, 17 October 1995, at
1696-1711, 1737-1742.
- See Foley v Padley (1984)154 CLR 349 at 371-373 per
Brennan J.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at 144 per Mason CJ.
- See ibid at 146 per Mason CJ.
- Ibid at 145 per Mason CJ.
- Ibid at 236.
- In ibid at 146 Mason CJ stated: 'It is said that the
restrictions leave unimpaired the access of potential participants
during an election period to other modes of communication with the
electorate. The statement serves only to underscore the magnitude
of the deprivation inflicted on those who are excluded from access
to the electronic media. They must make do with other modes of
communication which do not have the same striking impact in the
short span of an election campaign when the electors are
consciously making their judgments as to how they will vote.'
- The First Amendment to the United States Constitution was added
in 1791. It reads: 'Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.'
- US 191 (1992); 119 L Ed 2d 5 (1992).
- See the similar test drawn by Mason CJ in Australian
Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
at 143 as regards laws that targets ideas or information.
- Burson v Freeman 119 L Ed 2d 5 (1992) at 22.
- Ibid at 21-22.
- Cf Theophanous v Herald & Weekly Times Ltd (1994)
182 CLR 104 at 125 where Mason CJ, Toohey and Gaudron JJ stated:
'It is necessary to treat with some caution Canadian and United
States judicial decisions dealing with general guarantees of
freedom of speech. Their constitutional provisions are not the same
as ours.' Brennan J in ibid at 157 argued that the assistance given
by cases decided under other Constitutions is 'extremely limited'.
There was also a general rejection by the Court in
Theophanous of the test established by the United States
Supreme Court in New York Times v Sullivan (1964) 376 US
254. On the relevance of foreign precedents in construing the
implied freedom, see E Barendt, 'Free Speech in Australia: a
Comparative Perspective' (1994) 16 Syd LR 149 at 161,
164-165.