Professional Documents
Culture Documents
Aaron Magner*
Introduction
The Australian Constitution does not express all that is intended by it. That the
Constitution gives rise to implications which inform its construction is well established.1
The High Court has however been castigated from time to time for further expanding
the interpretation of the Constitution by recognizing a range of implied rights, what is
mistakenly referred to as an implied right of free speech. This essay considers whether
the Australian High Court ever actually recognised an implied right to freedom of
speech. In examining constitutional law, the degree of implied interpretation a person
considers appropriate will be based on the methodology of constitutional interpretation
they prefer. This essay will look at the alternative approaches to constitutional
interpretations and the approach of different majorities of the High Court have taken on
the major so called freedom of speech cases. The appropriate role of the High Court in
dealing with questions of implied rights is also discussed. Arguments in support and
against the High Court implying freedom of speech into the Constitution are considered.
Finally, while I find the High Court was correct in recognising an implied freedom of
speech, in order to give such rights legitimacy, authority, and clarity specific
endorsement for freedom of speech derived from a Bill of Rights is required and long
overdue.
*
* Aaron Magner is a Legal Counsel from the University of New South Wales (UNSW) Sydney, Australia. Aaron
advises on, reviews, negotiates and drafts a wide range of commercial agreements, provides policy, legislative and
strategic advice to senior university management and executive. He also advises on internal complaints and
manages litigation matters. This is essay submitted in 2002 for Constitutional Law with Professor Andrew Lynch
(now UNSW) and Professor Patrick Keyzar (now Bond University).
1
For example Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 implied State autonomy and
prohibited discriminatory interference; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(Engineers Case) (1920) 28 CLR 129 implied the doctrine of separation of powers, to name but two.
1
Bill of Rights - Amendment I
Unlike other western democracies, Australia’s legal jurisprudence does not contain an
express constitutional right to freedom of speech.2 Indeed the framers of Australia’s
Constitution explicitly resolved not to include a comprehensive list of fundamentals
freedoms and individual rights but instead placed their confidence in responsible
government3 to safeguard freedoms.4
2
Contrast the Commonwealth Constitution (1901) with Constitution of the United States (1788) esp. “Bill of
Rights” Amendment I (1791). Also contrast with the Canadian Charter of Fundamental Rights and Freedoms, Bill
of Rights Act (NZ) 1990 and the European Convention on Human Rights.
See Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 per
3
Nationwide News per Brennan J at 50-1, per Deane and Toohey J at 72-3, per Gaudron J at 94-5; Dawson J
10
dissenting, Australia Capital Television per Mason CJ at 139, Brennan J at 149 Deane and Toohey JJ at 168
Gaudron J at 212 and McHugh J at 233.
2
the prospect of the Court endeavoring to imply other rights through the principle of
representative government such as freedom of assembly, association and the like.11
As suggested in Aroney, N, Freedom of Speech in the Australian Constitution, The Centre for Independent
11
Studies , Brisbane, 1998. The term multiple stage implications is taken from this text.
12
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
13
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Mason CJ, Deane, Toohey and Gaudron JJ in the majority; Brennan, Dawson and McHugh JJ dissenting. Same
14
Theophanous (1994) 182 CLR 104, per Mason CJ, Toohey and Gaudron JJ at 125 “not all speech can claim the
15
The freedom of speech cases include; Nationwide News (1992) 177 CLR 1, Australian Capital Television (1992)
16
177 CLR 106, Theophanous (1994) 182 CLR 104, Stephens (1994) 182 CLR 211, Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520, Langer v The Commonwealth (1996) 186 CLR 302, and Levy v
Victoria (1997) 189 CLR 579
Pre-Lange, Brennan, McHugh and Dawson JJ were not comfortable with the idea of an implied freedom of
17
political communication, Mason CJ, Toohey, Gaudron and Deane JJ were in favour of implied freedom of
political communication.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 per Brennan CJ, Dawson, Toohey, Gaudron,
18
Ibid at 567. The majority decision in Australian Capital Television (1992) 177 CLR 106 is then cited as an
19
3
Freedom of Speech – A Dead Duck?
Following Lange, the High Court brought down a contradictory judgment in Levy.21 In
rejecting Mr Levy’s action for protection in accordance with the implied freedom of
speech unanimously agreed in Lange, the Court divided in their method applying the
new rule casting doubt on what the limits of the freedom were and raising questions
about the usefulness of the principle generally [discussed below].
The “creative role” of the High Court, described by Kirby J, reflects the well established
judicial method whereby implications are made to assist interpretation where some
accepted fact or principle is not expressly stated in the text of the Constitution.
Throughout Australia’s history the High Court has made landmark decisions involving
read into the Constitutional implications have provided the foundation for judgments
which profoundly influenced the life and future of the nation.23 Whenever these cases
arise, determining the appropriate role of the High Court leads to questions about the
role of judicial decision making in a constitutional democracy and the relative merits of,
on the one hand an approach that leaves judges with flexibility and on the other, limiting
their discretion while providing greater certainty.
20
Especially Brennan and McHugh JJ (dissenting) in Theophanous. This change in the approach of the majority
may reflect the changed composition of the Court. The 4:3 majority in Stephens and Nationwide News was Mason
CJ, Toohey, Gaudron, and Deane JJ. The minority was Brennan, Dawson and McHugh JJ. In Lange the retirement
from the Bench of Mason CJ, Deane J and the appointment of Gummow and Kirby JJ may be of some
significance. Also of note is that Brennan CJ appeared to change his mind!
Levy v Victoria (1997) 189 CLR 579 where the court reviewed regulations intended to prevent access by political
21
4
Within the discipline of constitutional law there are competing interpretive approaches
which when applied could support varyingly degrees of implied interpretation.24 For
example those who favour originalism will have a particular view of what makes up the
Constitution, and what methods are appropriate for this task,25 while those who prefer a
more flexible interpretation insist that while the words remain the same we inevitably
see the unchanged language in a different light than the original framers in an earlier
century.26 According to this later view, the meaning and content of the words take colour
from the circumstances in which the words must be understood and to which they must
be applied. 27 The Mason and Brennan courts in the Freedom of Speech decisions
although divided and not strictly adhering to any particular approach were generally
more evolutionary in their method of interpretation.28
Kirby, J, “Constitutional Interpretation and Original Intent – a Form of Ancestor Worship?”, 1999 Sir Anthony
26
5
muddied.32 Applying the first element of the proportionality test, the Court identified the
end served by the law as “protester safety”.33 The Court then considered the
“proportionality” of the measure chosen to pursue that end. Each judgement found that
the law was reasonably appropriate and adapted to protect protester safety,34 however in
contrast with the unanimity in Lange, in Levy there were six separate judgements each
balancing the interest pursued by the law against that pursued by the freedom and while
coming to the same decision, arriving by a different means.35
See discussion in; Stone, A., The Limits of Constitutional Text and Structure : Standards of Review and the
32
Wildlife (Game) (Hunting Season) Regulations, regulation 5 : Made it an offence to enter a “permitted hunting
33
area” without a duck shooting licence. Whether the object of the law was really safety or political protest is
arguable and reliant on the subjective opinion of the bench. See discussion in Jones, M., “Freedom of Speech
Revisited : The Implications of Lange & Levy”, Australian Journal of Human Rights, 4 (1997) at 201-3.
34
Levy v Victoria (1997) 189 CLR 579, per Gummow & Toohey JJ at 614-15, McHugh J at 627, Kirby J 647-8.
Only Dawson J and McHugh J applied in Levy the test decided in Lange. Brennan’s CJ’s approach was more
35
deferential to the powers of the legislature as in ACTV at 158-9. While a two-tiered test reminiscent of ACTV re
emerged in the judgments of Gaudron, Kirby, Toohey and Gummow JJ. See Stone, MULR 23 [1999] at 680-81.
For example the result in Levy is difficult to reconcile with Lange. Further, in Lange, Brennan CJ, Dawson,
36
McHugh, Toohey and Gaudron JJ effectively changed their previous views on the implied freedom of speech. The
decision in Langer (1996) 186 CLR 302, is also difficult to reconcile with the decision in ACTV : see Dawson J
(dissenting) in Langer at 326-327.
See Kirby J, “Attacks on Judges – A Universal Phenomenon”, Speech to American Bar Association Conference,
37
6
decision about what is and what is not political, and in doing so the High Court itself
limits freedom of expression.
Other critics of the freedom of speech decisions argue that as the Constitution is a
written one, the appropriate judicial method is one of interpretation45 and that if freedom
of speech is to be read into the Constitution, these implications must be closely linked to
representative democracy if they are to be legitimate.46 This argument is thoroughly
unconvincing given the recognition of well established doctrines such as representative
government and the separation of powers, which are not written but are implied by the
Constitution.47 It is therefore naive to reject the use of implications and other
fundamental principles48 in the interpretation of the Constitution. Implications,
thoughtfully applied, are a logical and necessary tool to compensate for a rigid and
largely dated written constitution.
40
Industrial Relations Act 1988 (Cth) – The object of the law was to make it an offence to criticise the Australian
Industrial Relations Commission
Political Broadcasts and Political Disclosures Act 1901 (Cth) : Sought to contain the trend toward big money
41
See Jones, M., “Freedom of Speech Revisited: The Implications of Lange & Levy”, Australian Journal of
42
Zines, L., “The Sovereignty of the People” in Coper, M., and Williams, G. (eds), Power, Parliament and the
43
See fn 23. Other concepts not articulated in the Constitution include the Cabinet, reserve powers of the Governor
47
General and despite deceptive appearances from the text, the irrelevancy of the Queen.
48
Such as the rule of law, judicial review, federalism and the like.
7
Is an Express Freedom of Speech Necessary?
Unfortunately the Constitution is not easily reviewable and the chances of achieving an
express constitutional charter of rights, such as a Bill of Rights, is poor, given the low
success rate of referendums.49 Following the freedom of speech cases some
commentators have suggested that if we give the High Court enough time, a Bill of
Rights, implied out of the Constitution, will emerge, to protect implied freedoms.50 But
do we really want judges rather than parliaments or the people to define our rights and
freedoms? Without an express guarantee founded upon principles clearly stated in the
national Constitution or in the form of a Bill of Rights, the punters who want to protect
their rights through the courts have the odds stacked against them. The obvious
limitation of freedoms which do not exist in the text is that we simply do not know what
the boundaries of free speech are.
In the absence of express provisions it is logical that the High Court inevitably moved to
fill the constitutional void. In doing so the Court has endeavoured to strike a balance
between the communities desire for freedom of speech as a necessary foundation of
representative democracy and the individual’s interest in protection of reputation and
the regulation of other harmful forms of speech. Where, however, should the Court draw
the line and say the nexus between speech and harm is too close and the speech must be
denied protection?
49
Pursuant to s128 of the Constitution. The double majority requirement of “ a majority of the states” and “ a
majority of electors”, means 4 out of 6 states must approve a change to the Constitution. Since federation only six
referendums have been successful in altering the text of the Constitution. The referendum machinery in s128 itself
must be reformed, although this issue deserves a separate paper. In the meantime we must rely on either High
Court review of the Constitution or genuine and enthusiastic bipartisan support for constitutional reform.
Zines, L., “A Judicially Created Bill of Rights?”, Sydney Law Review, 16 (1994) 166, also extra judicially
50
Toohey J “A government of Laws and Not of Men” (1993) 4 PLR 158 at 170 suggesting that over time an
“implied bill of rights” might be derived from decisions of the High Court.
8
IS FREE SPEECH A GOOD THING AND IS IT ESSENTIAL TO DEMOCRACY?
Some Australian academics on the other hand have suggested that protecting free speech
from regulation may hinder rather than advance public debate by excluding the voices
of some and emphasising the voices of others53 and that a truly full and fair discussion of
public affairs may actually require government intervention.54 This more pragmatic view
is corroborated by the political and social reality that inequalities in the capacity to
communicate and access information means those that have better means use their
advantage to control the course of public debate.55
Stone, A., The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political
53
See Flavin, A., “Can Legislation prohibiting hate speech be justified in light of free speech principles?”,
54
For a discussion of the First Amendment to the United States Constitution and the broad meaning of free speech
56
established by the United States Supreme Court see Williams, G. Human Rights under the Australian
Constitution, Oxford University Press, Sydney, 1999 p 167-168.
9
York Times v Sullivan59 where the Court adopted its analysis of the effect of liable action
on free speech.60 Even in the methods of constitutional interpretation, the USA’s idea of
what constitutes a model western democracy, establishes a hold on the approach of the
High Court of Australia.
political sociologist to be one of the defining characteristics of the Australian settlement, originating in our
convict/military history. See Kelly, P., The End of Certainty, Allen and Unwin, Sydney, 1992 at 9-11.
58
A choice that does not necessarily flow from its identification of freedom of political communication with
representative government. See Stone, A., "Freedom of Political Communication and the Common Law”, Federal
Law Review, 26 (1998) 219-257 at 235.
59
376 US 254 (1964) where there is a limited capacity of political figures to bring actions for defamation.
60
Theophanous (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ at 182-183 per Deane J.
61
The Hydra is a multi-headed beast in Greek mythology, which possessed the rather disturbing property that for
each head valiantly removed by the warrior Hercules, two heads would quickly grow from the stump of the neck
left behind.
62
See section 72 of Constitution. High Court judges are not elected but appointed and have tenure until the
retiring age of 70 and in all but extreme cases are beyond recall of the parliament.
As argued by McHugh J in McGinty (1996) 186 CLR 140 “Should the High Court have implied freedom of
63
speech and other freedoms or is this more appropriately a role for the people?” Quoted at Keyzer, Constitutional
Law, Butterworths, Sydney, 1998 p296.
64
s76 of the Constitution.
See for example the constitutional litigation with respect to s 41 referring to the right of electors of states, s
65
51(xxxi) dealing with the Commonwealth rights in the acquisition of property, s 80 the right to trial by jury, s 116
dealing with religious freedom, and s 117 concerning the rights of residents in States.
66
The Hydra beast was successfully slain by Hercules, by ensuring that each neck was properly cautersied
immediately subsequent to the removal or its corresponding head. Similarly it is the mission of the student of
constitutional law to recognise when each legal question has been adequately dealt with and then, in addition, to
judge when a newly growing head or issue should itself be recognised as having independent status.
10
Conclusion
Uninhibited free speech does not have constitutional protection in Australia.
Commonwealth and State legislatures have passed laws dealing with defamation,67
racial hatred,68 obscene and blasphemous libel,69 copyright,70 official secrecy,71 contempt
of court,72 censorship,73 treason74 and the like, placing express limits on speech and
expression. Influenced by, amongst other things, United States jurisprudence, the High
Court recognised a limited constitutional implication arising from our system of
representative government which operates to protect a narrowly defined form of
communication; speech which relates to government and political matters.
Whether the High Court should have recognised an implied freedom of speech in the
Constitution will depend on ones preferred school of thought. Looking at the question
from a broader political and social viewpoint, the answer will depend on your preferred
idea of what constitutes democracy.75 From a pragmatic perspective, the question will
ultimately be informed by ones own ethical, ideological and moral values. From a legal
perspective the degree of implied interpretation considered appropriate depends on the
methodology of constitutional interpretation which is preferred.
Australia is the only western nation without an express guarantee to free speech and as a
result we must rely on freedoms implied, in the Constitution. The High Court therefore
should have recognised and develop the implied freedom of speech - beyond the narrow
definition of political communication established in Lange, - and ultimately re-examine
and replace this with a more defined body of methodological rules.
67
Defamation Act 1974 (NSW)
68
Racial Hatred Act 1994 (Cth), Anti-Discrimination Act 1977 (NSW)
69
Crimes Act 1900 (NSW) s 574, Summary Offences Act 1988 (NSW), Classification (Publications, Films and
Computer Games) Enforcement Act 1995 (NSW) s 574 et. al.
70
Copyright Act 1968 (Cth)
71
Secret Commissions Act 1905 (Cth)
72
Supreme Court Act 1970 (NSW), District Court Act 1973 (NSW) et. al.
Obscene and Indecent Publications Act, Customs (Cinematorgraph Films) Regulations, Theatres and Public
73
11
In the longer term, implied freedoms however, while necessary in the absence of
express freedoms, have not been subject to the specific endorsement. In a democracy
authority can only come and acceptance will only come from the people. Therefore, in
order to give the right to freedom of speech clarity, legitimacy and authority, specific
endorsement, derived from a Bill of Rights reflecting the modern understanding of
democracy from the people of Australia is required.
12
BIBLIOGRAPHY
Aroney, N, Freedom of Speech in the Australian Constitution The Centre for Independent
Studies , Brisbane, 1998.
Coper, M., and Williams, G. (eds), Power, Parliament and the People, 1997.
Flavin, A., “Can Legislation prohibiting hate speech be justified in light of free speech
principles?”, University of New South Wales Law Journal, 18 (1995) 327
Jones, M., “Freedom of Speech Revisited: The Implications of Lange & Levy”, Australian
Journal of Human Rights, 4 (1997) 188
Kelly, P., The End of Certainty, Allen and Unwin, Sydney, 1992.
Kirby, M. (1992), “Current Topics: Constitutional Protection for Free Speech,” Australian Law
Journal 66 (1992) 775.
Lane, P., An Introduction to the Australian Constitutions, Law Book Company, 1994.
13
Mason, A., A Bill of Rights for Australia?”, Australian Bar Review, 5 (1989) 79.
Official Record of he Debates of the Australian Federal Convention (Melbourne), 8 February
1898.
Stone, A., "Freedom of Political Communication and the Common Law”, Federal Law Review,
26 (1998) 219-257.
Stone, A., The Limits of Constitutional Text and Structure : Standards of Review and the
Freedom of Political Communication, Melbourne University Law Review 23 [1999] p 668-708.
Toohey J “A Government of Laws and Not of Men” P Law Review, 4 (1993) 158.
Williams, G. Human Rights under the Australian Constitution, Oxford University Press, 1999.
Winterton, Glass, Lee and Thomson, Australian Federal Constitutional Law – Commentary &
Materials, LBC, Sydney, 1999.
Zines, L., “A Judicially Created Bill of Rights?”, Sydney Law Review, 16 (1994) 166.
14