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Article Excerpt
[The recognition of the implied freedom of political communication has been the subject of much controversy. Although a unanimous High Court in Lange v Australian Broadcasting Corporation identified the textual basis for the implication, there continues to be significant uncertainty as to the nature and scope of the freedom. This article seeks to provide an alternative constitutional foundation for protecting political communication, which focuses on the way in which representative government has been accommodated within the federal structure of government. In doing so, it attempts to provide a firmer constitutional foundation for the protection of political communication.]
CONTENTS I Introduction II The Basis for and Objections to the Implied Freedom A Recognising the Implied Limitation B The Lange Court's Version of the Implied Freedom and Objections to the Implied Freedom C Consequences of Unaddressed Objections for the Scope and Operation of the Implied Freedom III Federalism as a Basis for Protecting Political Communication A Federalism as a Judicially Enforceable Limitation on Legislative Power B Federalism and Political Communication C Constitutional Protection for Political Communication from the Australian Federal Compact 1 Federal Laws That Regulate Political Communication Relevant to State Governmental Institutions and Processes 2 State Laws That Regulate Political Communication Relevant to Federal Governmental Institutions and Processes 3 Federal Laws That Regulate Political Communication Relevant to Federal Governmental Institutions and Processes 4 State Laws That Regulate Political Communication Relevant to State Governmental Institutions and Processes IV Implications for Current Doctrine V Conclusion
I INTRODUCTION
The recognition and development of the implied freedom of political communication has been controversial. There has been uncertainty about the foundation for, and nature and extent of, the limitation. Recognition of the freedom has not always attracted the support of all High Court judges. Until Lange v Australian Broadcasting Corporation ('Lange'), (1) Dawson J maintained that there was no basis for implying a freedom of political communication. (2) It was not until the majority decision in McGinty v Western Australia ('McGinty'), (3) followed by the unanimous judgment in Lange, that the Court clarified the textual foundation for the implied freedom. Even so, since Lange, Callinan J has regularly expressed disapproval of the limitation. (4)
As to the extent of protection provided by the freedom, there has been uncertainty about the test to be applied, (5) and the degree to which the judiciary should defer to legislative judgements about the regulation of political communication. Some judges have been prepared to defer substantially to the policy balance struck by legislatures, (6) and most have generally been reluctant to identify with precision the factors to be taken into account when applying tests for validity. Even McHugh J, a strong supporter of a constitutional limitation to protect political communication, went to extraordinary lengths to deny that the Court engages in a policy balancing function when invalidating legislation. (7) There has also been reluctance by a number of judges to expand the category of protected communication to include, for example, political insults, (8) satire (9) or communication about the judiciary. (10) Furthermore, the question of whether the limitation operates on communication solely about state government or politics remains unclear. (11)
Despite the unanimous support for the implied freedom in Lange, the case law both preceding and following that judgment paints a picture of an unsettled constitutional doctrine. On one view, the uncertainties may be seen as a consequence of the Court incrementally feeling its way forward with a fledgling constitutional doctrine. However, on another view, these uncertainties may in fact reflect a perception by some judges that the judiciary is operating at the margin of, or in fact overreaching, its legitimate constitutional function. Indeed, as will be seen, there are very strong arguments against the implication of a freedom of political communication that are yet to receive a satisfactory response. (12)
This article seeks to provide an alternative constitutional foundation for protecting political communication. Like the Lange doctrine, this article relies on the centrality of political communication to the constitutional system of representative government. However, unlike Lange, this article will focus on the way in which representative government has been accommodated within the federal structure of government. Under the framework suggested in this article, the constitutional limitations protecting political communication draw from federal doctrines and thus lie at the heart of the judiciary's core constitutional function to maintain the federal compact. The article will argue that, according to this alternative framework, there is a strong case for protecting political communication, at least to the same extent as under the Lange doctrine. In doing so, this article is an attempt to provide a firmer constitutional foundation for the protection of political communication in response to the critics of the Lange doctrine who are concerned with the overreach of judicial review.
Part II of this article provides an overview of the current basis for the implied freedom and its objections. Part III will then argue that various dimensions of the federal structure protect representative government in Australia and the political communication necessary to give the institutions of representative government life, at least to the same extent as the Lange approach. Part IV considers the implications that these federal limitations have for current Lange doctrinal uncertainties.
II THE BASIS FOR AND OBJECTIONS TO THE IMPLIED FREEDOM
A Recognising the Implied Limitation
The early development of the implied freedom of political communication as a limitation on legislative and executive power was supported by two different conceptions of the scope of judicial review of legislative action. The less controversial basis for the limitation was that the High Court's role extends to the reinforcement of the constitutional system of representative and responsible government (put narrowly) or, alternatively, conceptions of representative democracy created by the Australian Constitution (put more broadly). (13) On this view, the reduction of 'representative government' or 'representative democracy' into written form in our constitutional system was seen as sufficient to depart from the orthodox constitutional theory of parliamentary sovereignty over representative government. (14) In other words, the mere existence of a written constitution embodying representative political institutions provided the foothold for the judicial protection of political communication and perhaps other rights. (15)
By contrast, some proponents of the freedom of political communication sought to reinterpret the intentions of the framers when establishing the constitutional arrangement. It was said by these proponents that federal legislative powers were not intended to be construed as encroaching upon fundamental rights, and the judiciary was seen as having an important role in identifying and protecting those rights. (16) Underlying the development of these views was the acceptance that legal sovereignty had shifted from the Imperial Parliament to the people of Australia. (17) On this understanding of our constitutional arrangement, it was argued that the federal legislature holds power on trust and it is for the judiciary to police the exercise of that power. (18)
B The Lange Court's Version of the Implied Freedom and Objections to the Implied Freedom
The High Court in Lange adopted the narrow version of the first basis for justifying the freedom and rejected the second. The revisionist view of the framers' intentions about rights protection has not been accepted and, in Lange, 'there was no appeal to the ultimate sovereignty of the Australian people' in grounding the freedom. (19) The freedom is to be drawn from the text of the Australian Constitution, not from vague theories of representative democracy said to underlie the constitutional system. (20)
Essentially, there are three steps to the Lange implication of a limitation on legislative power that is protective of political communication. First, that the text of the Australian Constitution creates a particular system of Commonwealth governmental institutions and processes: representative and responsible government and referenda. (21) Secondly, that it is an indispensable incident of those institutions and processes that there be a freedom of political communication. (22) Thirdly, that there needs to be a judicially enforceable limitation on legislative and executive power to protect communication which is required for those institutions and processes to work. (23) It is the third step in this justification that has been controversial, and there are a number of related reasons for that controversy.
The clearest objection put forward against the implication is that it is not consistent with 'interpretive orthodoxy'. (24) Although it may be accepted that the free flow of relevant information is essential to the efficacy of Australian constitutional institutions and processes, it has been argued that the policing role need not necessarily fall to the judiciary. (25) Dawson J initially resisted the recognition of an implied freedom on the basis that it was not an implication that was 'necessary or obvious having regard to the express provisions of the Constitution itself'. (26) This argument remains influential for Callinan J, who agreed with Jeffrey Goldsworthy's description of this objection as 'It]he "lion in the path" of any argument that judicial enforcement of freedom of political speech is practically necessary for the effective operation of our representative democracy.' (27)
Of course, as a matter of political theory, there need not be judicial enforcement of political rights for the political process to work effectively. The question, however, is whether the system of government entrenched in the Australian Constitution gives rise to such an implication. For Dawson J in particular, the fundamental objection was that the implication was of something 'for which the Constitution did not provide.' (28) In other words, by engaging in judicial review of legislation to protect political communication, the judiciary was said to be going beyond the understandings of the framers as to how the Australian Constitution organised the powers of the respective arms of government. In this regard, there are two familiar sticking points: first, that the framers did not contemplate that rights would be protected by judicially enforceable limitations on legislative power; and, secondly, that the distrust of the democratic process commonly attributed to the framers of the United States Constitution was absent from the framers of the Australian Constitution. (29) One consequence of these constitutional understandings was that, for the large part, competing claims of rights were to be resolved through the political process. (30) As Dawson J said in A CTV:
those responsible for the drafting of the Constitution saw constitutional guarantees of freedoms as exhibiting a distrust of the democratic process. They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine. (31)
A second consequence was that the political process was to be the primary mechanism through which representative government was shaped. As Gummow J emphasised in McGinty, the Australian Constitution does not entrench 'the whole apparatus of representative government' (32)--much of the system of representative government is left to the Parliament. (33)
The implied freedom of political communication, which rests on the system of representative government created by the Australian Constitution, runs into both of these obstacles: it removes the resolution of competing rights from the political process and entrenches an incident of representative government from legislative alteration. Although the unanimous judgment in Lange affirms the existence of the implied freedom and its textual source, the judgment does little to address the apparent incompatibility of the implied freedom with fundamental understandings of the roles of the respective branches of government. The discarded alternative view supporting implied limitations at least posited a challenge to the constitutional settlement reached by the framers based, in part, on shifting theories of sovereignty. By contrast, the majority in Lange relies exclusively on the reduction of representative government into written form and the judiciary's role as interpreter of the Australian Constitution. However, the Court does not explain how those justifications overcome the objections identified earlier.
C Consequences of Unaddressed Objections for the Scope and Operation of the Implied Freedom
Despite the Lange Court affirming the freedom, the experience with the implied freedom reveals an unenthusiastic application of the limitation by many recent members of the High Court. The experience so far has seen substantial deference by a number of justices to legislative policy-making, (34) imprecision in the identification of the test to be applied, (35) a reluctance to expand the boundaries of the protection, (36) and a reluctance to openly concede the policy role of the Court and to identify factors to be taken into account in determining whether a law contravenes the limitation. (37) These hesitations and uncertainties are not...
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