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ACTV case (1992) – concerned Part IIID of the Broadcasting Act, which banned broadcast political ads

Nationwide News (1992) – concerned the offence of bringing Industrial Relations Commission into disrepute

Constitutional guarantee of representative govt meant that there had to be some level of implied freedom of political communication

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

ROACH v ELECTORAL COMMISSIONER (2007)

- Used Lange test

- Cf s. 44 – exclusion from Parliament

- voting exclusion must be for a "substantial reason" and have a "rational connection" to a valid objective

- validity of exclusion of those serving 3 years or more

- validity of excluding those serving any prison time

ROWE v ELECTORAL COMMISSIONER (2010)

- procedural vs substantive restriction on the right to vote

- need a "substantial reason" for a law to detrimentally affect entitlement to vote

- justification = minimisation of fraud and accuracy of electoral roles

- disenfranchisement due to plaintiff's own actions

IMPLIED FREEDOM OF POLITICAL COMMUNICATION

POLITICAL DONATIONS

OPERATION OF FREEDOM

NATURE OF FREEDOM

LIMITS TO IFPC: PROPORTIONALITY

UNIONS NSW

Affects Cth legislation – ACTV, Nationwide News

Affects State legislation – Coleman, Stephens, Lange

Affects territory legislation – obiter in Lange

Moulds common law - Lange, AID/Watch

Is a freedom from legislative action rather than a positive right - Lange

rarely is there a practical difference

cf Unions NSW

- no donations from persons not on electoral role

- aggregation of calculation of election spending

Implied Rights

Sarah Joseph

Protection of Rights in the Constitution

OTHER IMPLIED RIGHTS

- 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

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