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ACTV, Nationwide News – some debate
- Text of Constitution – ss7, 24 (permits only narrow scope – eg McHugh, Dawson)
- Underlying notion of representative govt, popular sovereignty (permits broader scope)
- Theophanous, Stephens – defamation cases revealed wide schism
Lange v ABC (1997)
- HC was unanimous regarding source of the implied freedom
Source = text and structure of Constitution = those provisions concerned with representative and responsible govt (ss 7, 24, 64, 128 and miscellaneous others)
Unions NSW (2013): the flow of information about representative government is protected
Callinan and Heydon JJ have since questioned Lange but precedent seems safe
What is “political communication”?
Broad – joint judgment in Theophanous (p488)
Unanimity in Lange - 488-489
The ability to communicate … with respect to matters that could affect … choice in federal elections or constitutional referenda or that could throw light on performance of [federal] Ministers … and the conduct of the executive branch of government
Discussion of State, territory and local govt might affect federal impressions
Scope included allegedly defamatory speech about former NZ PM, due to history, geography, close ties
Unions NSW (2013)
- top of p 491
Levy v Victoria (1997) – protesting against duck shooting in Victoria. "Political speech" can include non-verbal speech and emotional outbursts
Coleman v Power (2004) – insulting language against Qld police officer. Speech can include insults
Wotton (2012)- speech about Indigenous people and police
Adelaide Street Preachers (2013) - could include unsolicited public communication
Monis (2013) - hate mail to parents of deceased soldiers from Afghan war
Lange: Is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the Constitution to the informed decision of the people.
COLEMAN v POWER (2004)
5 JJ: Is the law 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?
1. Ends: Is the objective of the law compatible with representative and responsible govt etc?
2. Means: Are the means used to achieve that end reasonable (appropriate and adapted?)
ACTV: was the broadcasting restriction proportionate?
90% of free time given to established parties, 10% to new parties, 0% to non-parties
Monis (2013):
- using post in an offensive way
What is the purpose of such a law?
Is it a legitimate purpose?
Does it use reasonable means?
Levy: public safety
N News: protection of reputation of IRC (went too far)
Cunliffe: ensured quality of migration advice
Hogan v Hinch: prevented vigilantism
Theophanous, Stephens, Lange: protect reputations
Wotton: protect community safety, crime prevention, rehabilitation, prevention of recidivism
Adelaide Street Preachers: regulate public use of roads and public places; prevent obstructions; ensure safety and convenience of road users
Recent bikie cases: combat organised crime
Kruger (1997) – freedom of movement, freedom of association?
Tajjour (2014) - no independent implied freedom of association
POLITICAL DONATIONS
Affects Cth legislation – ACTV, Nationwide News
Affects State legislation – Coleman, Stephens, Lange
Affects territory legislation – obiter in Lange
Moulds common law - Lange, AID/Watch
- no donations from persons not on electoral role
- aggregation of calculation of election spending
- parliamentary sovereignty
- few express rights in Constitution
- few correspond with "human rights" - cf s. 116
- separation of powers - Kable?
- "accidental victory" in Communist Party Case
- cf Thomas v Mowbray