Implied Freedom of Political Communication: Recent Developments and its Implication for Established Principles - Essay Example

?Implied Freedom of Political Communication: Recent Developments and its Implication for Established Principles Introduction In the 1990s, the Australian High Court ruled in a series of cases that the concept of a constitutionally “representative government” necessarily implied the freedom of political communication.1 Subsequent rulings by the High Court in Hogan v Hinch in 2011 and in Wotton v Queensland in 2012 appear to represent a step back from the previous cases in that Hogan and Wotton established that the implied right to political communication can be restricted in certain circumstances.2 This essay examines the main principles established by the High Court relative to the implied freedom of political communication and how those principles were interpreted and applied in Hogan and Wotton. The two cases reach decisions by applying a previously established test for the validity of restricting statutes. The applicable test was founded on the principles of law articulated by the High Court during the 1990s. This essay determines if and to what extent, Hogan and Wotton alters the principles of law applicable to whether or not a statute unreasonably burdens the implied freedom of political communication. The Implied Freedom of Political Communication The decision in Hogan held that a suppression order relative to the identities of sexual offenders released under supervision programmes burdened the implied freedom of political communication but did not render the enabling statute invalid. The statute in question was reasonable and adapted for serving a legitimate goal in a way that was consistent with maintaining a constitutionally representative government.3 Thus the decision in Hogan adheres to the principle that the implied freedom of political communication is not absolute and where there are tensions between the implied freedom and other rights and obligations established by law, those tensions would be resolved by examining the legitimate ends and the appropriateness of those conflicting laws. Likewise in Wotton, the Court came to the conclusion that although a statute imposing conditions on a parolee burdened the implied freedom of political communication, the statute in question was reasonably appropriate and was adapted to serve a legitimate end. Therefore the statute challenged by the parolee was not invalid and was not incompatible with the maintenance of a constitutionally representative government.4 It can therefore be argued that the main themes in Wotton and Hogan were the identification of the proper limits and purpose of the implied freedom of political communication. In identifying the proper limits and purpose of the implied freedom, did the court detract from previously established principles? Previously the High Court of Australia established that the context and “structure” of the Constitution establishes a “system of representative and responsible government”.5 Arguably both Hogan and Wotton, emphasise that representative government shoulders responsibility for protecting public interest in a way that burdens freedom of political communication, but at the same times does not compromise a constitutionally representative government. Any concerns about the decisions in Hogan and Wotton necessarily arise out of previously established principles emphasising that the constitutional constructs of the representative and responsible government, necessarily “requires that there be freedom of some types of communication” in order to support the system.6 In other words, the implied right of freedom of political communication is predicated on the concept that the Constitution of Australia envisions a governmental system which cannot function efficiently and effectively unless the citizens are permitted to communicate and share information relative to political matters.7 Australian Capital Television Pty Ltd. v Commonwealth (ACTV) , a landmark case on the introduction and articulation of the implied freedom of political communication8 involved a challenge to the validity of the Political Broadcasts and Political Disclosures Act 1991 which amended the Broadcasting Act 1942 and in doing so attempted to ban political advertisements via the television and radio.9 The court agreed by a majority that the 1991 Act was indeed unconstitutional and in doing so invoked the implied right to freedom of political communication. In this regard, the court ruled that the freedom to communicate on political matters was not a unilateral right of the government. The government had a duty as elected representatives to not only gauge the opinions of those who have elected them, but also to provide an explanation and accountability for their activities and decisions and to ensure that the electorate is duly informed in order for them to participate on issues that concern and interest them. In order to accomplish this end, it was necessary to facilitate liberal public communication via the media.10 It is important to note however, than in invoking the implied freedom of political communication the court did qualify the right as was later observed in Hogan and Wotton. As Mason CJ stated, the government’s duty to take into consideration the opinions of the people whom they represent, is necessarily accomplished via freedom of communication “at least in relation to public affairs and political discussion...”11 Thus even in its infancy, there was a recognition that the implied freedom to political communication is not an absolute right and this was clarified in greater detail in both Hogan and Wotton. ACTV recognized that the implied freedom was limited to matters of public affairs and political discussion. Hogan and Wotton determined that the implied freedom could be limited by statutes that were reasonably appropriate and adapted to serve a legitimate purpose. The court in Theophanous v Herald and Weekly Times Ltd. also described the implied freedom of political communication in a way that contemplates its applicability only to qualified political matters.12The High Court repeated this assertion in Stephens v West Australian Newspaper Pty Ltd. [1994] 182 CLR 211.13 A similar position is observed in the case of Lange v Australian Broadcasting Corporation. In Lange, the High Court ruled that the “giving and receiving of information” relative to “government and political matters” is necessary for the “common convenience and welfare of Australian society.”14 The Lange case is particularly instructive because it specifically narrowed the parameters of the implied freedom of political communication. The case involved a defamation claim filed by Sir David Lange who had previously served as New Zealand’s Prime Minister. Lange claimed that ABC’s allegation that he had abused public office was defamatory. ABC had sought to use the implied freedom of political communication as a defence to the defamation claim. The Court ruled that the implied freedom of political communication could only apply to governmental organs that acted in their capacities as legislators and executives and could not be used as a defence to a defamation claim. The Court went further to state that there needed to be a fair balance between free communication and the reputation of the individual.15 Indeed Lange is consistent with the Court’s findings in Nationwide News Pty. Ltd v Wills. In Nationwide, the plaintiff published an article attacking the independence and integrity of the Australian Relations Commission in one of its Newspapers. By virtue of Section 299 of the Industrial Relations Act 1988, the plaintiff was prosecuted.16 Pursuant to Section 299 a published attack on the any member of the Commission or the Commission itself which was designed to impugn any member or the commission was prohibited.17 The plaintiff challenged the validity of the 1991 Act on the grounds that it was unconstitutional. Although the Court unanimously agreed that the 1991 Act was unconstitutional and therefore invalid, the Court’s reasoning was divided. Mason CJ, Dawson J and McHugh J reasoned that Section 299 was invalid because the protection it conferred upon the Commission fell outside of the authority of Section 51(xxxv) of the Australian Constitution which granted the authority to make laws relative to arbitration and resolution of industrial disputes. Brennan J, Deane J, Toohey J and Gaudron J ruled that whether or not the law fall within the authority conferred by Section 51(xxxv) it encroached upon the implied freedom of communication with respect to matters involving the government.18 Thus, as with the decision in Lange, the Court in Nationwide confined the implied freedom of political communication to the operations and functioning of the government and its organs. Indeed, the Lange decision was followed in both Hogan and Wotton. Essentially, in striking a fair balance between individual reputation and freedom of political communication, it was necessary to restrict one right in favour of the other. In determining whether or not the implied right to political freedom should be restricted in favour of another law that seemingly confers a conflicting right, the validity of that other law will be tested by asking two questions. First it must be determined whether or not the law essentially burdens the implied freedom of political communication. Secondly, if it is found that the law does in fact burden the implied freedom of political communication, it must be ascertained whether or not the law is proportionate to and consistent with a legitimate goal and can co-exist with and support the concept of a constitutionally representative and responsible government.19 A similar line of reasoning was followed in both Hogan and Wotton in which it was determined that statutes burdening the implied freedom of political communication were valid since they served legitimate ends and were reasonably appropriate and were adapted in ways that were not incompatible with a constitutionally representative government. It can also be argued that the reasoning of the court in both Hogan and Wotton is quite similar to the reasoning in Stephens. The Court ruled that the purpose of the law relative to qualified privilege was to balance: ...or to reconcile the law’s protection of personal reputation and freedom of speech that is appropriate in a free society. There is a public interest in both objectives and the law must provide a nice adjustment in regulating the competition between them.20 In this regard, an individual alleging police corruption is properly availing himself of the implied freedom of political communication, so that a statute making the exercise of that right in that context would be invalid.21 Essentially, in determining the validity of a law it was necessary to ascertain the purpose of the law and the public interest that it sought to protect or promote.22 This is the approach taken by the court in both Hogan and Wotton and was not unlike the proportionality test considered in Levy v Victoria in which the court ruled that a law regulating hunting that restricted the implied freedom of political communication was proportionate to the need to protect public safety in the area where the hunting took place.23 Ultimately, the implied freedom of political communication has been established as a fundamental and necessary right for the maintenance of representative and responsible government. However, the implied freedom is not an absolute right to the extent that laws conflicting with the implied freedom of political communication are not automatically deemed constitutionally invalid. The nature of the implied freedom of political communication is such that it is restricted to certain political circumstances and must be weighed against conflicting laws to determine if those laws are necessarily and reasonably commensurate with public protection in a democratic society. Hogan and Wotton: Implications for the Implied Freedom of Political Communication The Hogan case involved a constitutional challenge to the validity of Section 42 of the Serious Sex Offenders Monitoring Act 2005 in Victoria. Section 42 prohibited publishing information that could reveal the identity of an individual who had been convicted of a sexual offence and who was under post-release monitoring programmes.24 Hinch having exposed that names and identities of individuals meeting the parameters of Section 42 on his website and at a rally was subsequently charged pursuant to Section 42. Hinch challenged the constitutionality of Section 42 on three separate grounds, one of which was that Section 42 infringed upon the implied freedom of political communication.25 The Court rejected Hinch’s arguments on all three grounds and essentially ruled that Section 42 was not inconsistent with any implied or actual constitutional right. The Court went on to state that although Section 42(3) did in fact burden the implied right to political communication the law was reasonably necessary for protecting the community by facilitating the effective and efficient supervision of sexual offenders who were released under monitoring programmes.26 In other words, Hogan merely applied the Lange test and came to the conclusion that the law restricting the implied freedom of political communication was reasonably appropriate and adapted for serving a legitimate goal in a way that was consistent with maintaining the constitutionally contemplated government system and as such was not invalid. It therefore follows that Hogan does not alter the pre-existing established principles of law regulating and defining the implied right to political communication. The previous cases demonstrate that the court has always acknowledged that the implied right to political communication is confined to cases in which the communication is related to the activities and decisions of government and their agents in relation to their role and functioning as members of the government. Moreover, the proportionality test has always demanded that conflicting rights must be balanced fairly and the legitimate aims of the law seemingly infringing upon the implied right to political freedom must be ascertained and tested for validity. The Hogan case involves a situation in which tensions exist between a statute purportedly with legitimate aims restricts the implied freedom of political communication. The court applied the Lange test, a test which is founded on the previously decided principles by the High Court and determined that on this particular occasion, the statute in question had a legitimate aim and although it burdened the implied freedom of political communication it was a constitutionally valid statute. Thus the Hogan case merely fortifies and clarifies the pre-existing law regulating the implied freedom of political communication. A similar observation appears in Wotton v Queensland Wotton was convicted of rioting resulting in destruction following a riot in 2004. Wotton was subsequently released on parole pursuant to the Corrective Services Act 2006 of Queensland. Wotton challenged the conditions of this parole and argued that two of those conditions restricted his implied freedom of political communication. In a unanimous decision the High Court ruled that both the statutes under which the relevant conditions of parole were not inconsistent with the implied right to political communication. A majority ruled that although both statutes had the effect of burdening the implied freedom of political communication, the statutes satisfied the Lange test in that they were reasonably appropriate and adapted to serve a legitimate goal in a way that was consistent with maintaining the constitutional premise of the system of government.27 Conclusion The implied freedom of political communication is not an absolute right. Likewise, laws restricting the implied freedom of political communication also do not encompass absolute rights and freedoms. The High Court of Australia, in invoking and articulating the implied freedom of political communication has always maintained that it serves a limited purpose: the maintenance of a constitutional system in which representative and responsible government is effective and efficient. At the same time, the High Court of Australia has always maintained that the implied freedom of political communication can be restricted by laws that have a legitimate aim and is proportionate to the stated aim. The latter cases of Hogan and Wotton do not detract from the established law but merely demonstrates the boundaries within which the implied freedom of political communications exist for maintaining a constitutionally representative and responsible government. Research Methodology Issue Identification The main issue is the identification of the established principles surrounding the implied freedom of political communication. In this regard, the research involved identifying how the High Court of Australia established the existence of this implied constitutional right and how this freedom has been developed by the courts. By taking this approach, it is necessary to examine a progression of the law and to identify whether or not in principle the law remains the same or has been altered by the most recent decisions. The important aspects of the issues and questions raised are the key points identified by the court in ascertaining the circumstances in which the implied freedom exist and when the implied freedom of communication can be restricted. Thus case law challenging the validity of laws restricting the implied freedom of political communication will have to be analysed. Only then can the more recent cases of Hogan v Hinch and Wotton v Queensland be examined to determine if these more recent cases are consistent with the law as it was developed or alters it in principle. Research Plan The research methods will consist of secondary and primary sources. The secondary sources consist of textbooks and articles/journals. The secondary sources are important for identifying opinions, facts and academic discussion relative to the implied freedom of political communication. Thus key search fields will include: implied constitutional rights, freedom of political communication, restrictions on freedom of political communication. Primary sources consist of statutes and cases. Primary sources are entirely necessary for identifying the law and developments relative to the implied freedom of political communication. Primary sources inform of the limits of this implied freedom as well as its reach and how the courts have determined the extent to which the implied freedom of political communication should be protected or denied in favour of competing rights. Evaluation of Secondary Sources Arcioni, E. ‘Developments in Free Speech Law in Australia: Coleman and Mulholland.’ (2005) 33 Federal Law Review, 1-22. This source was important for identifying the historical and developmental features of the law relative to the implied freedom of political communication. It provided a synopsis of the law and an analysis of the court’s findings in each case. This source also provided insight into the tensions that exist between the implied freedom of political communication and other constitutional rights. This journal article is reliable as it is a peer reviewed article and is fairly up-to-date having been published in 2005. The author is a member of the faculty of law at the University of Wollongong, in New South Wales, Australia. The author is a respected academic as evidenced by the fact that the article was reproduced from a paper presented at the Speech and Freedom: Comparative Constitutional Conceptions, at the Australian National University in December 2004 and was presented upon an invitation by Dr. Adrienne Stone. The article was well researched and reported the findings of other authors and was unbiased in that both sides of the debate were discussed. Gray, A. ‘FOI and the Freedom of Political Communication.’ (2007) 12(1) Deakin Law Review, 193-218. Anthony Gray is a senior lecturer at the University of Southern Queensland and his article was peer reviewed and fairly recent having been published in 2007. This article was particularly useful since it focused on the link between freedom of information and freedom of political communication. Gray attempted to put the implied freedom of political communication in the wider context of the public’s right to access to information in the public interest. All other articles tend to focus more narrowly on the subject of the implied right itself and rarely permit a comparative study to shed light on the freedom of political communication. The author includes other researchers’ reports in his article and uses case law to demonstrate the link between freedom of information and the implied freedom of political communication. Thus the article is valid in that it uses evidence to back up opinion and goes to great lengths to include all possible arguments and counter arguments. Jones, T. H. ‘Freedom of Political Communication in Australia.’ (April 1996) 45(2) The International and Comparative Law Quarterly, 392-401. Timothy Jones is a professor of law at Swansea University School of Law and his area of expertise is Administrative law, Constitutional law, Criminal law and legal theory. The article was peer reviewed and although published in 1996 is relevant as it provides an examination of the conceptualization of Australia’s law closer to the time that it was making major inroads into Australia’s constitutional law. The article is peer reviewed and well-researched in that case law, statutes and the works of other experts in the field are used to provide the reader with robust arguments and information about the implied right to political communication. Reflection and Evaluation of Research Strategies I think the research strategies used in this research paper were effective and efficient. Although the research fields were limited at first, each source of information uncovered by the research led to other areas of inquiry and thus the research strategies were broadened once the research was underway. In the future however, I would prefer to start with an recently published article that provides a history of the law from its inception to the most recent cases. By taking this approach, I would be able to construct a list of the most relevant cases and look them up myself. In any event Arcioni’s article and the Wotton cases were particularly helpful as they both provided a comprehensive source of information relative to the law and developments applicable to the implied freedom of political communication. Bibliography Articles/Journals Arcioni, E. ‘Developments in Free Speech Law in Australia: Coleman and Mulholland.’ (2005) 33 Federal Law Review, 1-22. Gray, A. ‘FOI and the Freedom of Political Communication.’ (2007) 12(1) Deakin Law Review, 193-218. Jones, T. H. ‘Freedom of Political Communication in Australia.’ (April 1996) 45(2) The International and Comparative Law Quarterly, 392-401. Textbooks Lee, H. P. and Winterton, G. Australian Constitutional Landmarks, (Cambridge, UK: Cambridge University Press, 2003). Table of Cases Australian Capital Television Pty Ltd. v Commonwealth [1992] 177 CLR 106. Coleman v Power [2004] 220 CLR 1. Hogan v Hinch [2011] HCA 4. Kruger v Commonwealth [1997]190 CLR 1. Lange v Australian Broadcasting Corporation [1997] 189 CLR 520. Levy v Victoria [1997] 189 CLR 579. Nationwide News Pty. Ltd v Wills [1992] 177 CLR 1. Stephens v West Australian Newspaper Pty Ltd. [1994] 182 CLR 211. Theophanous v Herald and Weekly Times Ltd. [1994] 124 ALR 1. Wotton v Queensland [2012] HCA 2. Table of Statutes Industrial Relations Act 1988. Political Broadcasts and Political Disclosures Act 1991. Serious Sex Offenders Monitoring Act 2005. Read More