Protections from statutory encroachment

Australian Constitution

4.17     In Australian law, particular protection is given to political speech, recognising that free speech on political matters is necessary for our system of representative government:

Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.[10]

4.18     Beginning with a series of cases in 1992,[11] the High Court has recognised that freedom of political communication is implied in the Constitution. This freedom ‘enables the people to exercise a free and informed choice as electors’.[12] The Constitution has not been found to protect free speech more broadly.

4.19     The Constitution does not protect a personal right, but rather, the freedom acts as a restraint on the exercise of legislative power by the Commonwealth.[13]

The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom?[14]

4.20     The freedom is not absolute. For one thing, it only protects some types of speech—political communication.[15] In Lange, it was held that the freedom is ‘limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’.[16]

4.21     While the scope of the implied freedom is open to some interpretation, it does not appear to extend to non-political communication and non-federal communications concerning discrete state issues.[17] French CJ has advocated a broader understanding of the meaning of ‘political communications’ to include ‘matters potentially within the purview of government’.[18] This interpretation has not so far commanded support from a majority of the High Court.[19]

4.22     The limited scope of the communications covered by the implied freedom is illustrated by the decision of the High Court in APLA Ltd v Legal Services Commissioner (NSW).[20] This concerned prohibitions, in New South Wales legislation, on advertising by barristers and solicitors. The High Court held that the prohibitions did not burden the implied freedom of political communication, because the advertising was not communication about government on political matters.[21]

4.23     In Lange, the High Court formulated a two-step test to determine whether an impugned law infringes the implied freedom. In Attorney-General (SA) v Corporation of the City of Adelaide, the Lange test (as modified in Coleman v Power)[22] was described as involving two questions:

1. Does the law, in its terms, operation or effect, effectively burden freedom of communication about government or political matters?

2. If the law effectively burdens that freedom, is the law nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people?[23]

4.24     In McCloy v New South Wales, the High Court expressly adopted a proportionality test to be applied, where the purpose of a law and the means adopted to achieve that purpose are legitimate:

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test—these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable—as having a rational connection to the purpose of the provision;

necessary—in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance—a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.[24]

4.25     Commonwealth and state legislative limits on freedom of speech have been subject to constitutional challenge under the implied freedom of political communication doctrine. These have included criminal laws,[25] restrictions on public canvassing,[26] and electoral funding laws.[27]

4.26     The constitutionality of provisions of the Criminal Code, concerning using a postal or similar service to menace, harass or cause offence,[28] was considered by the High Court in Monis v The Queen.[29] The High Court divided equally on whether s 471.12 of the Criminal Code exceeded the limits of the legislative power of the Commonwealth Parliament because it impermissibly burdened freedom of communication about government or political matters. As a result, the decision of the New South Wales Court of Criminal Appeal—that the provision was valid—was affirmed.

4.27     The three judges who held that the provision was invalid did so on the basis that preventing offence through a postal or similar service was not a ‘legitimate end’, as referred to in the Lange test.[30] The other judges read down s 471.12 as being ‘confined to more seriously offensive communications’ and aimed at the legitimate end of preventing a degree of offensiveness that would provoke a more heightened emotional or psychological response by a victim.[31] Read this way, the law went no further than was reasonably necessary to achieve its protective purpose.[32]

4.28     Another constitutional aspect of freedom of speech concerns parliamentary privilege, which protects the freedom of speech of parliamentarians and witnesses before Parliament and its committees. Section 49 of the Constitution provides that the ‘powers, privileges, and immunities’ of Parliament ‘shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth’.

4.29     The effect of this provision is to incorporate into the constitutional law of Australia a branch of the common and statutory law of the United Kingdom as it existed in 1901, and to empower the Commonwealth Parliament to change that law in Australia by statute.[33]

Principle of legality

4.30     The principle of legality provides some further protection to freedom of speech. When interpreting a statute, courts will presume that Parliament did not intend to interfere with freedom of speech, unless this intention was made unambiguously clear.[34]

4.31     For example, in Attorney-General (SA) v Corporation of the City of Adelaide, French CJ said:

The common law freedom of expression does not impose a constraint upon the legislative powers of the Commonwealth or the States or Territories. However, through the principle of legality, and criteria of reasonable proportionality, applied to purposive powers, the freedom can inform the construction and characterisation, for constitutional purposes, of Commonwealth statutes. It can also inform the construction of statutes generally and the construction of delegated legislation made in the purported exercise of statutory powers. As a consequence of its effect upon statutory construction, it may affect the scope of discretionary powers which involve the imposition of restrictions upon freedom of speech and expression.[35]

4.32     In Monis, Crennan, Kiefel and Bell JJ held:

The principle of legality is known to both the Parliament and the courts as a basis for the interpretation of statutory language. It presumes that the legislature would not infringe rights without expressing such an intention with ‘irresistible clearness’. The same approach may be applied to constitutionally protected freedoms. In such a circumstance it may not be necessary to find a positive warrant for preferring a restricted meaning, save where an intention to restrict political communication is plain (which may result in invalidity). A meaning which will limit the effect of the statute on those communications is to be preferred.[36]

International law

4.33     International instruments provide for freedom of expression including the right, under art 19 of the International Covenant on Civil and Political Rights (ICCPR), to ‘seek, receive and impart information and ideas of all kinds regardless of frontiers’.[37]

4.34     The United Nations Human Rights Committee provides a detailed list of forms of communication that should be free from interference:

Political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching and religious discourse.[38]

4.35     The freedom of political communication doctrine in Australia applies to a narrower range of speech, as compared to protections in other countries (including the US, Canada, the UK and New Zealand). Australia is the only democratic country that does not expressly protect freedom of speech in its ‘national Constitution or an enforceable national human rights instrument’.[39] From one perspective, common law ‘protection of free speech at the Commonwealth level essentially dates back to 1992, and is very limited compared with the equivalent protection under international law’.[40]

4.36     International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[41] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[42]

Bills of rights

4.37     In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. Bills of rights and human rights statutes protect free speech in the US,[43] UK,[44] Canada[45] and New Zealand.[46] For example, the Human Rights Act 1998 (UK) gives effect to the provisions of the European Convention on Human Rights, art 10 of which provides:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.[47]

4.38     This legislative right may not necessarily be different from the freedom recognised at common law: in the Spycatcher case, several members of the House of Lords expressed the opinion that in relation to freedom of speech there was, in principle, no difference between English law and art 10 of the Convention.[48]

4.39     The First Amendment to the United States Constitution provides significant protection to free speech. In New York Times v Sullivan, the US Supreme Court spoke of a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’.[49]

4.40     There are also protections for free speech in the Victorian Charter of Human Rights and Responsibilities and the Human Rights Act 2004 (ACT).[50]

[10]           Australian Capital Television v Commonwealth (1992) 177 CLR 106, 139 (Mason CJ). See also Nationwide News v Wills (1992) 177 CLR 1, 74 (Brennan J).

[11]           Australian Capital Television v Commonwealth (1992) 177 CLR 106; Nationwide News v Wills (1992) 177 CLR 1.

[12]           Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 570.

[13]           Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Nationwide News v Wills (1992) 177 CLR 1; Wotton v Queensland (2012) 246 CLR 1; Hogan v Hinch (2011) 243 CLR 506. This ‘negative’ form of the right to freedom of speech is shared by the United States and other common law countries, where ‘constitutional rights are thought to have an exclusively negative cast’: Adrienne Stone, ‘The Comparative Constitutional Law of Freedom of Expression’ (University of Melbourne Legal Studies Research Paper 476) 12.

[14]           Unions NSW v New South Wales (2013) 304 ALR 266, [36]. Also, the High Court said in Lange: ‘Sections 1, 7, 8, 13, 24, 25, 28 and 30 of the Constitution give effect to the purpose of self-government by providing for the fundamental features of representative government’: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557. Sections 7 and 24 do not ‘confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power’: Ibid 560.

[15]           Political communication includes ‘expressive conduct’ capable of communicating a political or government message to those who witness it: Levy v Victoria (1997) 189 CLR 579.

[16]           Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561.

[17]           See George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 184. However, the High Court has stated that the ‘complex interrelationship between levels of government, issues common to State and federal government and the levels at which political parties operate necessitate that a wide view be taken of the operation of the freedom of political communication’: Unions NSW v New South Wales (2013) 304 ALR 266, [25].

[18]           Hogan v Hinch (2011) 243 CLR 506, [49]. French CJ has said that the ‘class of communication protected by the implied freedom in practical terms is wide’: Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, [67]. The case left open the possibility that religious preaching may constitute ‘political communication’.

[19]           See Williams and Hume, above n 17, 185.

[20]           APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322.

[21]           Kirby J, in dissent, held that as a matter of basic legal principle, a protected freedom of communication arises to protect the integrity and operation of the judicial branch of government, just as it does with regard to the legislature and executive branch: Ibid [343]. The laws in question, he said, amounted to ‘an impermissible attempt of State law to impede effective access to Ch III courts and to State courts exercising federal jurisdiction’, which ‘cannot stand with the text, structure and implications of the Constitution’: Ibid [272].

[22]           Coleman v Power (2004) 220 CLR 1.

[23]           Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, [67] (French CJ).

[24]           McCloy v New South Wales [2015] HCA 34 (7 October 2015) [3] (French CJ, Kiefel, Bell and Keane JJ) footnote omitted.

[25]           Criminal Code s 471.12; Monis v The Queen (2013) 249 CLR 92. Also vagrancy laws: Coleman v Power (2004) 220 CLR 1.

[26]           Local Government Act 1999 (SA), By-law No 4—Roads [2.3], [2.8]; Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1. The High Court upheld the validity of a by-law that restricted preaching, canvassing, haranguing and handing out printed matter.

[27]           Election Funding, Expenditure and Disclosures Act 1981 (NSW) pt 6 div 4A; McCloy v New South Wales [2015] HCA 34 (7 October 2015). The High Court upheld the validity of an Act that imposed a cap on political donations, prohibited property developers from making such donations, and restricted indirect campaign contributions.

[28]           Criminal Code s 471.12.

[29]           Monis v The Queen (2013) 249 CLR 92.

[30]           Ibid [73]–[74] (French CJ), [97] (Hayne J), [236] (Heydon J).

[31]           Ibid [327]–[339] (Crennan, Kiefel and Bell JJ).

[32]           Ibid [348].

[33]           Harry Evans and Rosemary Laing (eds), Odgers’ Australian Senate Practice (Department of the Senate, 13th ed, 2012) 39.

[34]           Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, [42]–[46]; Evans v New South Wales (2008) 168 FCR 576, [72]; R v Secretary of State for the Home Department; ex parte Simms [2002] 2 AC 115 130.

[35]           Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, [44] (French CJ).

[36]           Monis v The Queen (2013) 249 CLR 92, [331].

[37]           International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19(2). The Universal Declaration of Human Rights also enshrines freedom of speech in its preamble: Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948).

[38]           United Nations Human Rights Committee, General Comment 34 on Article 19 of the ICCPR on Freedoms of Opinion and Expression, UN Doc CCPR/C/GC/34 (12 September 2011) [11].

[39]           George Williams, ‘Protecting Freedom of Speech in Australia’ (2014) 39 Alternative Law Journal 217, 218.

[40]           Monash University Castan Centre for Human Rights, Submission 18. The Castan Centre was referring to the decisions in Australian Capital Television v Commonwealth (1992) 177 CLR 106; Nationwide News v Wills (1992) 177 CLR 1.

[41]           Minister for Immigration v B (2004) 219 CLR 365, [171] (Kirby J).

[42]           Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J).

[43]           United States Constitution amend I.

[44]           Human Rights Act 1998 (UK) c 42, s 12 and sch 1 pt I, art 10(1).

[45]           Canada Act 1982 (UK) c 11, Sch B Pt 1 (Canadian Charter of Rights and Freedoms) s 2(b).

[46]           New Zealand Bill of Rights Act 1990 (NZ) s 14.

[47]           Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 10(1).

[48]           Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109. This view was approved in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 550–1 (Lord Keith); R v Secretary of State for the Home Department; ex parte Simms [2002] 2 AC 115.

[49]           New York Times v Sullivan 376 US 254 (1964) 270 (Brennan J).

[50]           Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15; Human Rights Act 2004 (ACT) s 16.