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Last Updated: 15 July 2010
Rights, Personal Rights and Freedoms:
The Nature
of the Freedom of Political Communication
Adrienne
Stone[*]
Introduction
The freedom of political communication is often
described as an ‘implied constitutional right’ or simply an
‘implied
right’.[1] The
High Court, however, has been rather wary of that description, usually
preferring to describe it as a ‘freedom’ or
‘guarantee’.[2]
The Court has been particularly adamant that the freedom is ‘not a
personal right’[3]
and has drawn some important conclusions from this statement, including
conclusions as to the relationship between the common law
and the Constitution.
In this article, I consider why the Court is wary of the description
‘right’ and, in particular, why it insists that the
doctrine does
not confer ‘personal rights’. I argue that this statement can
be understood in two ways. First, it means that the freedom exists to support a
certain
system of
government[4] rather
than to protect values more closely associated with the individual, such as
autonomy. Thus the freedom could be described
as
‘institutional’[5]
(its rationale being protection of certain institutions of government) rather
than ‘personal’. Secondly, in saying that
the freedom is not a
‘personal’ right, the High Court also means that the freedom
operates in only limited ways. First,
it is a ‘negative’ right
rather than a ‘positive’
right[6], which means
that it provides freedom from interference, rather than the
right to engage in certain activities or to be provided with certain
benefits. Further, it has a ‘vertical’ rather than
‘horizontal’
operation, which means that is concerned with
relationships between the individual and the state rather than relationships
between
individuals.
I will argue, however, that these ideas have been
misunderstood by the High Court and the Australian courts in general. First, I
will
address the conclusions that the courts have drawn from the institutional
rationale for the freedom. In Part I, I will address the limits placed on the
coverage[7] of the
freedom. Australian courts have drawn the category of ‘political
communication’ very narrowly to cover only certain,
very obviously
political, kinds of
communication.[8] I will
argue that, even taking into account the narrow concept of ‘representative
and responsible government’ that the
High Court has
adopted,[9] a much
wider range of communication is relevant to the proper functioning of government
at the federal level.
More fundamentally, in Part II, I will challenge the
generally accepted view that the institutional rationale of the freedom of
political communication precludes
consideration of ‘personal’ values
like autonomy, by reviewing arguments that respect for autonomy is a necessary
part
of democratic government. The doctrinal consequences of these arguments
have yet squarely to confront the courts. However, as I will
explain, the place
of autonomy as a value relevant to the freedom of political communication is
likely to make an important difference
to judicial attitudes to matters such as
campaign finance legislation.
In Part III, I will address the consequences of
the idea that the freedom of political communication is a
‘negative’, ‘vertical’
right. I will show that the High
Court’s misunderstanding of these concepts has led it to make one serious
conceptual mistake.
From these ideas, it draws the conclusion that the freedom
is primarily addressed to legislative and executive action and thus, as
a
general matter, does not directly apply to the common law. I will argue that
this conclusion is not supported by its premises and
is ultimately contradicted
by the Court’s simultaneous assertion that common law rules must conform
to constitutional
requirements.[10] I
will suggest that the High Court ought to acknowledge that, at least in cases
like Lange v Australian Broadcasting
Corporation,[11]
the common law is subject to constitutional requirements in much the same
way as are laws made by the legislature and executive. I conclude by considering
some possible consequences of, and objections to, my arguments.
I. An Institutional Right: Coverage
One way to categorize rights is to distinguish
between rights that serve interests closely identified with the holder of the
right,
such as autonomy,
‘self-realization’,[12]
human dignity or the well-being of individuals (which could be described as
‘personal’ rights) and ‘rights’
that serve larger
interests.[13] This
distinction provides one explanation for the statement that the freedom of
political communication is not a ‘personal
right’. By its very
nature the freedom of political communication falls squarely into the latter
category. It is directed toward
protecting a larger
interest,[14] the
protection of representative and responsible government or, as the Court has
insisted, particular institutions of that form of
government identifiable in the
text of the
Constitution.[15] Thus
the freedom protects communication that enables that voters in federal elections
(and constitutional referenda) to exercise
a ‘true choice with ‘an
opportunity to gain an appreciation of the alternatives’’
[16] and that ensures
that the federal Executive can be held responsible to the federal
Parliament.[17]
The freedom of political communication thus relies upon a very specific
justification that is institutional rather than personal.
This feature of the
doctrine seems to have brought the Australian courts to the conclusion that the
category of political communication
is very narrow. As the law currently stands,
‘political communication’ apparently includes only discussion of
laws and
policy of the federal Parliament, the conduct of members of
Parliament,[18] and
the political affairs of a state that are very closely connected to federal
affairs.[19] However,
as I will now show, that conclusion is not compatible with the freedom’s
basic justification.
1. Current
Boundaries
In the early cases, the coverage of the freedom of political
communication was often described in rather vague terms as ‘government
and
political matters’ or some similar
concept[20] or
described broadly.[21]
Since Lange there has not been an authoritative High Court statement on
the issue and most lower court decisions have avoided the question of
coverage
by finding that the legislation in question is valid as ‘reasonably
appropriate’
regulation.[22]
However, the principal thrust of Lange was to confine the freedom by
reference to constitutional
text[23] and, in
keeping with that conservative approach, there is a discernable trend toward
narrowing the coverage of the freedom. I will
give four examples:
2. Critique
It may be possible to defend the results in
each of these
cases.[36] There were
countervailing interests to be weighed against the freedom of political
communication[37] that
could perhaps have justified the regulation of the speech under the second limb
of the Lange
test.[38] Indeed,
in Levy, where only two judges addressed the question of coverage, this
was the principal basis of the
decision.[39]
However, the conclusion that the communication at issue in each of these
cases had no political
content[40] is very
weak. In each of these cases, the communication in question bears some relation
to a central concern of the freedom of political
communication, namely the
casting of a free vote for federal parliamentary
representatives.[41]
In
Levy, a part of the protesters’ concern was the environmental
damage caused by the destruction of endangered
species.[42] The
Federal Parliament has considerable power to regulate environmental matters
through, among other powers, the external affairs
power,[43] the trade
and commerce power[44]
and the power to make conditional grants to state
governments.[45] So,
by raising awareness of the destruction of endangered species, the protesters
could affect the attitudes of voters toward matters
over which the federal
Government has influence and thus their votes in federal
elections.[46]
Indeed, confining the freedom to matters relevant to federal politics is not
a very significant limitation. The federal Parliament
can use its powers in
pursuit of an almost unlimited range of
policies[47] and,
given the financial dominance of the Commonwealth, it is difficult to imagine
any matter on which the Commonwealth could not
seek to assert itself, even if
only through a ‘tied’ (i.e., conditional) grant to a state pursuant
to section 96.[48]
Discussion of the political affairs of a state will, therefore, usually have
some relevance to federal politics even if it is only
because of the possibility
of some form of federal intervention.
In Brown, the second case
discussed above, the message was a radical challenge to
‘capitalism’, a vision of social order of importance
in a western
industrialized nation like Australia. Although there is no discussion of any
particular law or policy proposal, this
kind of a challenge does invite voters
to re-think the overall direction of government and thus could conceivably
affect their federal
electoral
choices.[49]
In
Fairfax the majority concluded that the general discussion of conduct of
courts is not covered by the
freedom.[50] In so far
as the statement applies to federal courts, it is easy to dispute. Federal
courts are established under federal legislation,
much of their administration
is determined by federal legislation and regulation, and judges are appointed
the federal Executive.
To that extent, then, the conduct of the federal courts
reflects the state of federal law and federal executive policy.
Further,
there is another link between federal courts and federal government policy that
is shared with the state courts. Both federal
and state courts administer
federal statutes, and thus the conduct of courts reveals the implications of a
government’s enactment
of legislation or support for existing legislation.
For example, the federal law limiting the power of the Federal Court to review
decisions of the Refugee Review Tribunal reflects federal policy on refugee
issues.[51] A full
understanding of the effect of that policy can only be understood through a
through an examination of the conduct of the judicial
review process. Where
state courts interpret state statutes they are similarly involved in the
administration of federal policy,
the discussion of which is relevant to a full
understanding of the conduct of the federal
Government.[52] Even
the common law role of the courts is relevant to government policy at least in
areas over which the Commonwealth has some power.
Without an understanding of
how the common law operates, it would be hard to formulate views about where the
Parliament should intervene.
The reasons for the dismissal of the Hanson
case are similarly unconvincing. Ms Hanson’s political opponents
accuse her of racism and her views on indigenous affairs (perhaps
especially
native title) and Asian immigration are among her most controversial. Although
the banned song contains only sparse commentary
on her political platform, it
does contain some strongly critical statements – perhaps most pertinently,
‘I’m a
back door man for the Ku Klux Klan with very horrendous
plans’[53]- that
were clearly inspired by and meant to inspire others to hostility towards her
and her politics. The relevance of this kind
of comment on a Member of
Parliament to the federal electoral process need hardly be explained. The
Queensland Court’s reservations
really relate to the insulting and
offensive tone of the communication and, although this fact might make
regulation of it easier
to justify, it does not eradicate the political
significance of the
message.[54] The
offensive nature of the portrayal of Hanson could be seen as part of its
political nature, adding strength through its capacity
to shock and perhaps
amuse.[55]
3. New Categories of Political Communication?
The concept of
political communication therefore needs a new and more generous definition. The
redrawing of the boundaries should
be guided by the underlying logic of the
freedom of political communication, by consideration of what kind of
communication must
be protected in order for the institutions protected by the
freedom to function properly. Considered in this light, there are at
least four
categories of communication that could be included in the concept of
‘political’
communication.[56]
Each of these categories would extend the concept further than it is currently
drawn and, in some cases, would expand the concept
dramatically.
(a) Explicitly Political Communication
The first category can be
termed ‘explicitly political’ communication. Robert Bork developed
this category in his attempt
to confine the coverage of freedom of speech under
the First Amendment:
The category of protected speech should consist of speech concerned with governmental behavior, policy or personnel, whether the governmental unit involved is executive, legislative, judicial or administrative. Explicitly political speech is speech about how we are governed, and the category therefore includes a wide range of evaluation, criticism, electioneering and propaganda.[57]
What distinguishes this kind of speech is that it is substantively about
government. This is a good starting point for the Australian freedom,
because these matters are obviously relevant to a voter’s
choice in
federal elections and the other institutions protected by the freedom. Of
course, given that the freedom only protects
certain federal institutions
of representative and responsible government, Bork’s category would have
to be modified to cover only communications
about the behaviour, policy and
personnel of the federal Parliament and federal Executive or about the
referendum procedure. Most
obviously, this category would cover discussion of
current federal laws, proposed referenda, policy of government and opposition
parties, the business of the federal Parliament and the public conduct of
members of Parliament.
The adoption of this category would extend the
coverage of the freedom at least to the discussion of the political beliefs of a
Member
of Parliament, raised by the Hanson case. The category ought also
to extend to some discussion of the conduct of courts, the issue concerned in
Fairfax. For the reasons I have explained, although courts are not
themselves institutions protected by the freedom of political communication,
sometimes discussion of courts closely reflects the policy of the federal
Government and the state of its
laws.[58] At the very
least, then, discussion of the operation of the federal courts, the appointment
of federal judges and the interpretation
of federal statutes (by state or
federal courts) amounts to discussion of the behaviour of the federal
Government.
(b) Potential Subjects of Government Action
The first
category might be taken to exclude matters that are not the subject of an
existing law or of the current attention in the
federal Parliament but which
might become the subject of a law or policy in the future. On this view, the
freedom would not cover
discussion of issues like changing the Australian flag,
reintroducing national service, abolishing the states or reintroducing the
death
penalty.[59]
In my
view the distinction between these two categories is rather difficult to draw
because the fact that some issue is not currently
the subject of some action
might indicate satisfaction with the status
quo[60] or represent a
failure to appreciate the need for governmental action. Either way, the failure
to make a policy proposal or to take
action will often reveal the nature of
governmental behaviour just as much as if a government has acted or some party
or person in
the Parliament has proposed to act. In any event, the discussion of
issues before they reach the political agenda has intrinsic value.
A
voter’s understanding of many issues, especially the most complex ones, is
likely to be developed over time and cannot realistically
be left to the point
at which the judgment of voters is to be exercised.
Therefore, to make the
matter perfectly clear I suggest that we should recognise that the freedom of
political communication covers
a second category of communication: communication
about issues that could become matters of federal law or policy or in
some way the subject of federal governmental action. Although this extension
simply anticipates
a change in the political agenda, it will broaden the
category of political communication greatly. The federal Parliament considers
a
wide array of issues, and the breadth of federal government involvement in
modern life means that, subject to some common-sense
limitations,[61] it is
almost impossible to be sure that any matter will not become the subject of
federal political
debate.[62] Who would
have predicted, before the tragic shootings at Port Arthur in April 1996, that
gun control would become a federal issue?
Or that sexual privacy would become a
federal issue as it did following the successful appeal to the United Nations
Human Rights
Committee.[63]
To
return to the examples discussed above, this second category would allow the
coverage of the matters at issue in Levy. The point in Levy is
that the criticism of the state law is a matter on which the Federal Parliament
could choose to
respond,[64] thus
making the matter one relevant to federal government policy. Second, to return
to the issue raised by Fairfax, this category would also extend coverage
to some discussion of state courts not included in category one. In areas of
concurrent
state and federal power, the federal Parliament will have the power
to intervene to override interpretations of the common law by
state courts, or
to render state laws invalid. The conduct of state courts in these areas is a
matter over which the Commonwealth
could act and therefore, on the analysis just
advanced, discussion of this conduct comes within the freedom of political
communication.
(c) Communication that Influences Attitudes towards Public
Issues
The third category of political communication suggested by the
basic logic of the freedom of political communication would include
discussion
of matters that are not themselves likely to be the subject of law or government
action, but might nonetheless influence
the attitudes of voters toward the
government. Of the cases discussed above, this category would expand the
coverage of the freedom
to matters at issue in Brown (political theory
touched on in the censored article) and, more generally, will greatly expand the
category of political communication.
Consider just the issues underlying two
recent controversies: the Prime Minister Howard’s refusal to issue a
formal national
apology to the ‘Stolen
Generation’[65]
and the federal Government’s proposal to amend the Sex Discrimination
Act 1984 (Cth) to allow states to deny single and lesbian women access to
state funded invitro-fertilisation (IVF)
services.[66] Debate
over the Stolen Generation has touched on questions of historical fact (the
numbers of children removed under the policy,
the nature of their removal and
their subsequent
treatment),[67]
competing interpretations of Australian
history[68] and
questions of collective and individual
responsibility.[69] At
the heart of the IVF debate are questions of appropriate
parenting,[70] the
‘rights’ of adults to be parents and of children to have parents of
a certain kind,[71]
the use of reproductive technologies
generally[72] and, on
some views, of
federalism.[73] In
these debates, questions of religion, moral philosophy, history, medical science
and sociology all arise. Voters’ understanding
of and attitudes to these
matters can affect their attitudes on questions of public policy, their
attitudes to the Howard government,
and ultimately their vote at a federal
election.
(d) Communication that Develops Qualities Desirable in a
Voter
Finally, and most broadly, it is possible to argue that
communications that develop the capacities or qualities necessary to make
a
‘true choice’ in a federal election are included within the
‘political communication’ category. The potential
for this category
to expand the coverage of the freedom of political communication is particularly
dramatic. Alexander Meiklejohn,
the foremost exponent of self-government
arguments for the First Amendment, included education, science, philosophy, art
and literature
within the category of political
communication.[74]
Some of these matters (philosophy and science most clearly) would be
included in category three above. However, the fourth category
covers some
communication not included in the third. It includes communication that is
relevant to democratic government because
of the qualities it develops in the
citizenry. Meiklejohn argued for the coverage of matters that help the voter
‘acquire the
intelligence, integrity, sensitivity, and generous devotion
to the general welfare that, in theory, casting a ballot is assumed to
express.’[75] In
short, he argued, ‘the people do need novels and dramas and paintings and
poems, because they will be called upon to
vote.’[76]
The breadth of these categories suggests a difficulty that has
attended other attempts to define the concept of ‘political
communication’:
if the concept is infinitely expandable it becomes
meaningless.[77]
Partly because of this problem, many First Amendment scholars have criticized
attempts to justify freedom of speech solely by the
argument from democratic
government.[78]
The Australian High Court, however, cannot escape the task, because it
developed the freedom of political communication to serve precisely
that
purpose. For those wanting to limit the concept, Bork’s argument that
political speech should only include ‘explicitly
political’ speech
will probably seem very attractive. Although it is not a very influential First
Amendment theory,[79]
it looks like a more promising theory of the freedom of political communication,
given the limited nature of the Australian doctrine.
The principal virtue of
Bork’s argument is that it does draw a line, thus ending what he calls the
‘analogical stampede’
that threatens the viability of the
concept.[80] He
acknowledges that, wherever the line is drawn, there will be hard cases, but
argues:
Any theory of the first amendment that does not accord absolute protection for all verbal expression, which is to say any theory worth discussing, will require that a spectrum be cut and the location of the cut will always be, arguably, arbitrary. The question is whether the general location of the cut is justified.[81]
There is much to be said for drawing the line somewhere. At their extreme, arguments about what is necessary to protect democratic government (or even just free voting in federal elections) can be quite implausible. Bork makes the point:
I agree that there is an analogy between criticism of official behavior and the publication of a novel like Ulysses, for the latter may form attitudes that ultimately affect politics. But it is an analogy, not an identity. Other human activities and experiences also form personality, teach and create attitudes just as much as does the novel, but no one would on that count, I take it, suggest that the first amendment strikes down regulations of economic activity, control of entry into a trade, laws about sexual behavior, marriage and the like.[82]
In the context of the freedom of political communication the need to draw a
line seems at least as pressing. The concept of what protects
responsible and
representative government is open to very broad interpretation. Further, because
there is no text that mentions ‘speech’
or
‘communication’ it would be especially easy to argue for the
coverage of non-communicative activity.
Nonetheless, there is some question
as to whether Bork draws the line in even approximately the right place. There
are doubts voiced
in the United States as to whether focusing on government
behaviour neglects the role that private bodies play in public
affairs.[83] A further
concern is that, even supposing Bork has correctly identified the speech that
should count as ‘political’,
the line should be drawn more
generously to allow for the possibility of
error,[84] especially
given difficulties that courts might experience in distinguishing between
political and non-political
speech.[85]
Further,
in the Australian context at least, there are good reasons to include
communications in categories two and three in the concept
of political
communication. First, in these cases the analogy to explicitly political
communication is relatively strong. With these
communications, it is the
substance of communication that helps voters assess a government and
determine their vote. By contrast, communications in category four relate
to the
vote more indirectly. They contribute to the development of certain qualities
like open mindedness, tolerance and capacity
for critical thinking and these
qualities in turn affect the voter’s response to more overtly
political
communication.[86]
Further,
it is not even obvious that explicitly political communications ought to be the
touchstone against which all other communication
is assessed. Under the freedom
of political communication the overriding concept is what enables electors to
make a ‘true’
electoral
choice.[87] Taking
explicitly political communication as the starting point seems to assume that it
is the most important communication for ensuring
free voting in a federal
election. However, other kinds of communication might be at least as important
as explicitly political speech,
or even more so. For example, people may form
their political opinions by discussion of matters not on the political agenda,
including
matters like religion and philosophy that develop more fundamental
commitments. Again, this point counsels the inclusion of categories
two and
three in the concept of ‘political communication’.
Thus, if we
take the logic of the freedom of political communication seriously, the concept
of political communication is very broad.
It may be possible to place some
limits on it, such as the exclusion of communications whose only relevance lies
their capacity to
develop qualities in the citizenry that assist in the exercise
of the vote.[88]
However, the concept of 'political communication covers a far broader range of
communication than the Australian courts currently
recognise. Indeed, in this
respect the courts would do well to return to the pre-Lange position. In
Theophanous v Herald & Weekly Times Chief Justice Mason and Justices
Toohey and Gaudron recognized that ‘what is ordinarily private speech may
develop into speech
on a matter of public concern with a change in content,
emphasis or
context’[89] and
stated:
‘[P]olitical discussion’ includes discussion of the conduct policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office [and] ... refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.’’[90]
Most importantly for this argument, stating that the freedom of political communication is not a ‘personal’ right provides few obvious limitations. Despite its apparently political or ‘institutional’ nature, much apparently non-political communication is relevant to that rationale for the freedom.[91]
II. An Institutional Right: Underlying Rationale
I have so far assumed that the institutional
rationale for the freedom of political communication excludes other
‘non-political’
values sometimes advanced for freedom of speech. Of
the traditional free speech
justifications,[92] it
seems that the only relevant arguments are those that relate to the role of
freedom of speech in protecting democratic
government[93] (or
self-government).[94]
I now wish to challenge that assumption.
Individual autonomy is a value
often advanced as a justification for freedom of
speech.[95] Freedom of
speech protects individual autonomy by allowing individuals to form their own
opinions about their beliefs and
actions.[96] This
argument seems clearly inappropriate for the freedom of political communication,
falling into the category ‘personal’
rather than
‘institutional’. However, arguments for autonomy and arguments for
democratic government are rather closely
linked and it is possible to draw
similar links between autonomy and the apparently narrower justification behind
the Australian
doctrine.
Perhaps the most obvious way in which autonomy might be relevant to
the freedom of political communication is its instrumental role
in promoting
representative and responsible government. It is easy to see that some
protection of individual autonomy is required
by the institutional rationale for
the freedom: people need to have free access to the information necessary to
make free choice
at elections. Stated at this level of generality, the point is
uncontroversial. Even critics of ‘autonomy’ as a free
speech
rationale accept that autonomy should be protected where necessary to ensure the
appropriate exercise of the citizen’s
political
function.[97]
However,
if we attempt to be more specific, even this seemingly uncontroversial point
raises difficulties because opinions differ
as to how the protection of autonomy
relates to the exercise of the vote. This matter is the subject of a deep schism
in modern American
free speech theory: the divide between theorists who place
emphasis on the quality of public debate and are sympathetic to government
intervention in order to promote a rich and balanced
debate[98] and free
speech theorists who view such intervention with great
hostility.[99]
The two theories divide sharply on the issue of ‘speaker
autonomy’ that is on the freedom of the individual to participate
in
public debate as a speaker. For the theorists who argue for a ‘rich and
balanced’ debate, speaker autonomy has a relatively
small role as a free
speech value. To these theorists, ‘what is essential is not that everyone
shall speak, but that everything
worth saying shall be
said.’[100]
Further, they are concerned by the capacity of social structures to impede the
rich public debate required for democratic
government.[101]
Therefore, they would allow a relatively wide scope for the state to intervene
to ensure fairness and balance in public debate. This
may require interference
with the autonomy of the speaker but ‘[s]ometimes we must lower the voices
of some to hear the voices
of
others.’[102]
On
the other hand, the more traditional First Amendment conception of the
relationship between democratic government and public debate
requires a robust
and vigorous
debate[103] (rather
than a restrained, fair debate) and is characterized by hostility to government
attempts to correct distortions in public
debate.[104] One
prominent argument for this position is Frederick Schauer’s argument that
the consequences of a poor government decision
are particularly serious, and the
risk government intervention poses to speech outweighs any possible benefit to
be derived from
regulation designed to enhance public
debate.[105] This
position in turn requires more freedom for the individual to participate in
public debate and thus more protection of the autonomy
of the speaker.
A stronger version of the argument is that democratic government presupposes or logically implies the autonomy of citizens. On this view, respect for autonomy is an essential aspect of democratic government and thus must be protected irrespective of the value’s instrumental role. In developing his autonomy-based argument for freedom of speech,[106] Thomas Scanlon wrote ‘[t]he legitimate democratic state is one that regards individuals as ‘equal autonomous agents.’[107] So while it might be conceivable that a state might chose to treat its citizens otherwise:
These actions would have to be justified on some other ground (e.g.,
utilitarianism) and the claim ... to be obeyed would not be that
of a legitimate
government in the usual democratic
sense.[108]
To
translate the argument into the Australian context, the argument would be that
the system of representative and responsible government
instituted by the
Constitution logically requires, or is premised upon, some respect for the
autonomy of the individual. Such an argument would bring with it the
consequence
that the concept of personal autonomy would guide the interpretation of the
freedom of political communication, even
when personal autonomy is not
instrumental to the protection of representative and responsible
government.
This is an ambitious and perhaps startling argument, especially
given the High Court’s insistence that the freedom of political
communication is governed by constitutional text rather that
‘external’ political principles or
theories.[109] I
will therefore set out the argument in two steps. First I will review a
prominent argument that the democratic government rationale
for freedom of
speech entails some concern for individual autonomy. Then I will suggest how
this idea might be relevant to the freedom
of political communication.
(a) Autonomy and Democratic Government
One version of the
argument, put by Robert Post, is that a commitment to autonomy is included
within the democratic government (or
as he prefers it,
‘self-government’[110])
rationale.[111]
Professor Post’s argument is that the ‘internal logic of
self-government’[112]
requires individuals to see collective decisions as connected to their own
self-determination. That is they must have a sense of
participation in the
process and, although they might not agree with all majoritarian decisions, a
sense of legitimacy and identification
with the
government.[113]
Such identification, he argues, requires more than voting, even if the state
provides citizens with information relevant to their
vote. It requires
participation in a free public
discourse.[114]
To make his point, Post asks us to imagine a society in which voters had
unlimited access to information relevant to their electoral
choices. That
information, however, is provided by the state and voters are not permitted to
discuss these issues among themselves
nor add to the information provided to
others.[115] In such
a society, he says, ‘[i]ndividuals ... feel completely alienated from
these decisions. They do not identify with them
and instead feel controlled and
manipulated by the external force of the
collectivity.’[116]
Post’s point is not, however, limited to how individuals feel about
government. He also makes the stronger point that where
the conditions of public
debate are too greatly controlled, voters are inappropriately controlled
and thus self-government is undermined. Self-government requires not only that
there be a debate of public
issues but that citizens can contest the terms of
that debate. If the state determines the conditions on which debate is
conducted,
this necessarily requires the state to impose its own view of what is
appropriate public debate, a matter on which there is no ‘neutral’
or generally agreed
standards.[117] On
the comparison of public debate to a town meeting, an analogy Meiklejohn
famously employed to justify governmental control of
the conditions of public
debate,[118] Post
writes:
Public control over the presentation and characterization of issues within a
town meeting seems unproblematic because of a shared
agreement concerning
efficient institutional function and procedure. But with democratic life such an
agreement cannot be assumed
without concomitantly diminishing the arena for
self-determination ... ‘political conflict is not like an intercollegiate
debate
in which the opponents agree in advance on the
issues’.[119]
His
conclusion is that autonomous participation in public debate is a necessary part
of the framework in which such public debate
must occur. It is therefore a
precondition of ‘self-government’.
This is not an argument, it
should be noted, for the protection of personal autonomy in general. It is an
argument that autonomous participation in public debate is a necessary
precondition of that form of government. This form of autonomy is given special
protection because it creates the
context in which democratic politics is
conducted. Thus, other encroachments on personal autonomy are justified
precisely because
they occur within a context in which individuals are free to
participate in the public debate about those
issues.[120]
(b) Autonomy and the Australian Constitution
Of course, Post's
argument is exactly the kind of argument that the High Court intended to exclude
by its adoption of the ‘text
and structure’ interpretive
method.[121] Post
views democratic government and as a mechanism for achieving a deeper value
(‘self-rule’ or
‘self-government’).[122]
Drawing on Lange, the obvious objection to Post's argument is that the
freedom of political communication is not directed to any deeper value, but
only
to the voting procedure for the House of Representatives and the Senate and
other textually identifiable features of representative
and responsible
government.[123]
I
therefore regard it as most unlikely that an argument like Post's will be at all
influential upon the High Court in the foreseeable
future. However, if we put
the Court’s current conservatism to one side and consider the matter from
first principles, these
arguments cannot simply be dismissed as irrelevant to
the freedom of political
communication.[124]
The argument does not depend on any particular constitutional text, but on what
Post argues to be logically implied by the democratic government (or
‘self government’) rationale for freedom of
speech.[125] If it
could also be argued that the institutions of representative and responsible
government established by the Australian Constitution also logically require
some protection of autonomy, Post's argument have some force with respect to the
freedom of political communication.
Let me suggest, then, how the argument
might be transferable to the Australian Constitution’s adoption of a
system in which the people choose their elected representatives. The key
feature, once again, is the requirement
of a ‘true’ choice in
elections for the federal
Parliament.[126] The
idea of a true choice requires some explanation: what does it mean to say that a
choice is ‘true’? It might be said
that the idea of people of
choosing their representatives requires that they be autonomous participants in
a public debate, and that
they be able to contest to terms on which the debate
occurs. Without freedom to participate in public debate in this way, voters
would feel controlled and would be subject to a state-imposed conception of what
public debate should be like. Choices made in this
context would not be the
‘true’ choices that the Constitution requires. Thus, despite the
Lange Court’s distaste for ‘political principles and
theories’,[127]
the idea of ‘true’ choice (which it endorses) does allow for the
importation of some deeper ideas into the freedom of
political
communication.
I am not suggesting, I should be clear, that the Australia
courts should adopt these
ideas.[128] Apart
from responses to the argument as a theory of the First Amendment, specific
features of the Australian context may well be
good reasons to reject the link
that Post draws between democratic government (or collective self-rule) and
individual self-rule.
First, it should be recognised that Post's claim that
democratic government necessarily or logically entails some protection for
autonomy is dependent on his adherence to a particular concept of democratic
government.[129] It
is because he defines a democratic system of government as one in which citizens
participate freely in a public debate (including
in the process of determining
the framework in which that debate occurs) that he is able to imply from it the
need to protect autonomy
in this sphere. Therefore, it would be possible to
reject the argument by offering a different interpretation of the values
underlying
representative and responsible government in Australia. For example,
theorists committed to an 'originalist' interpretation of the
Constitution might
reject the argument arguing that the framers' vision of Australian government
was unconcerned with values like personal autonomy.
A similar argument could be
maintained by those who consider that the Australian Constitution’s
authority stems from the Parliament at Westminster (which passed the Act of
which the Constitution forms a
part)[130] This
argument, if accepted, points to a clear difference between the forms of
government implement by the United States and Australian
constitutions.[131]
If the power to choose Parliamentary representatives is a grant from an external
body, rather than a collective decision of the Australian
people to govern
themselves, then it could be seen as a limited grant of power designed to give
Australian voters some choice in
their government but not designed to maximize a
stronger concept of self-government of the kind upon which Post
relies.[132]
Subjecting voters to state imposed conditions on the conduct of public debate
could (under this approach) be consistent with our
fundamental constitutional
premises.
I will not attempt to suggest any particular answer to these
questions about the Australian Constitution here. My point not to offer an
alternative theory of Australian democracy but to show that it is
possible that the freedom of political communication could be grounded in
a concept of representative and responsible government that requires
some
protection of personal autonomy. The High Court's current interpretive methods
do not rule out such
arguments[133] and
thus even though the freedom of political communication serves an institutional
rationale (and thus is not a ‘personal’
right), questions about more
‘personal’ values remain. Questions of individual autonomy cannot be
excluded if the form
of government the freedom protects itself requires some
protection of autonomous participation in public debate.
The High Court has
yet to address this question and, given, its current aversion to theoretical
analysis, it is likely to leave undecided
for sometime. Nonetheless, the issue
is not merely of theoretical interest. The argument does not alter the fact that
the freedom
of political communication only protects communication designed to
ensure a true electoral
choice[134] but it
would alter our conception of what kind of regulation of such political
communication is permissible. Post's argument is addressed to that dispute,
discussed
above,[135] between
traditional American free speech theorists and those who argue that some
regulation of speech is permissible because it improves
the democratic process.
Indeed his principal target, Owen Fiss, is perhaps the principal exponent of the
idea that the First Amendment
permits the regulation of campaign spending, hate
speech and pornography, because such regulation contributes to a 'rich' public
debate.[136] .
Post's argument is that because democratic government should be understood to
include a commitment to autonomous participation
in political debate, regulation
that interferes with such autonomy cannot be reconciled with democratic
ends.[137]
One
might tempted to make a quick response to this point. It might be argued that
Fiss' vision of free speech is also one concerned
with autonomy. The laws that
he supports address the ability of the powerful to dominate public debate and
therefore enhances the
capacity of others to participate. Thus, it might be
thought that Fiss’s approach interferes with the 'autonomy' of some only
to increase the autonomy of others. This argument, however, mistakes the role
that autonomy plays in Post's theory. For Post, autonomous
participation in
public debate is not something that the state can set to equalize, because the
legitimacy of any such action depends
itself on autonomous participation of the
citizenry in public
debate.[138] Thus
autonomy must be a presupposition of democratic self-government, rather than an
ideal that it seeks to
maximise.[139]Accepting,
then, that Post's argument is relevant to the debate over laws that restrict
speech in an effort to enrich public debate,
the question is one that the
Australian courts may have to face. It seems most likely that the issue will
arise in the context of
campaign finance
legislation.[140] As
the facts of Australian Capital Television v
Commonwealth[141]
themselves illustrate, legislation addressing the problems of campaign finance
(and thus limiting political communication) is justified
on the basis that it
improves the very political processes with which freedom of political
communication is also concerned. Although
it invalidated the legislation in
Australian Capital Television, the High Court has yet squarely to face
the question of whether government may ‘manage’ the public debate,
silencing
some voices in the interests of rich public
debate.[142] The
current conservatism of the Court suggests that it would find such legislation
compatible with the freedom, as do some dicta in Australian Capital
Television v
Commonwealth.[143]
If this is the prevailing view, arguments that autonomous participation in
public discussion is either instrumentally necessary for,
or an intrinsic part
of, the constitutionally prescribed form of government pose a challenge with
which Australian courts have not
yet dealt.
III. A Negative, Vertical Right
I have so far considered the idea that the freedom of political
communication is not ‘personal’, in the sense that it
serves
political, rather than personal, ends. This first meaning of the concept
‘personal right’ is perhaps the most
natural sense of the term, but
the High Court also uses the term in another way that has nothing to do with the
values that underlie
the right. When the Court says the freedom is not a
‘personal right’, it also means to say that the freedom is a
‘negative’
rather than a ‘positive’
right.[144] When the
term ‘personal right’ is used in this way, a right that serves
personal values would still not count as a ‘personal
right’ so long
as it operated to limit government rather than to require government
action.[145]
The
equating of personal rights with positive rights is suggested clearly by the
following passage in the High Court’s unanimous
judgment in
Lange:
‘[Sections] 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’[146]
The passage is almost immediately followed by the quotation of this passage
from Justice Brennan’s judgment in Cunliffe v Commonwealth:
‘[t]he implication is negative in nature: it invalidates laws and
consequently creates an area of immunity from legal
control’.[147]
Adopting this analysis, the freedom of political communication should be
seen as a freedom from interference with political communication
rather than a
guarantee of a right to participate in it. As Justice Brennan stated in
Theophanous v Herald & Weekly Times, ‘[i]f the freedom implied
in the Constitution were a personal right or immunity, it would extend to what
is needed to facilitate or permit its full
enjoyment’.[148]
It was this conception that led to the rejection of a petition by a candidate in
a federal election for orders that various media
bodies ensure proper coverage
of independent
candidates.[149]
Although the Court uses the term ‘negative’, it also draws the
conclusion that the freedom of political communication
applies only to
legislative and executive power. This aspect of its treatment of the freedom
implies another quality: the right applies
only to actions of the state and does
not protect individuals from actions of other private parties. Thus the freedom
has only ‘vertical’
(rather than a ‘horizontal’)
operation.[150]
This
classification of the freedom of political communication is consistent with
conventional understandings about constitutional
rights. The classification of
the freedom as
‘negative’[151]
is consistent with the liberal philosophical
tradition[152] and
aspects of the common
law.[153] It is also
commonly the case that constitutional rights have a ‘vertical’
application.[154]
But, although classifying the freedom these ways is not seriously the subject of
any controversy, it does give rise to further complications.
The concept of
a ‘negative’ right and the concept of a ‘vertical right’
both depend on troublesome distinctions.
A negative right protects a citizen
from action (rather than requiring action to ensure her rights) and
therefore requires a distinction between action and inaction. A vertical
right
protects against state (not private) action and therefore requiring a
distinction between public and private actors.
The problem with the
action/inaction distinction is that an ‘act’ can often be recast as
an instance of ‘inaction’.
Occurrences within a closely related
chain of events provide easy examples: the failure to apply the brakes while
driving a car can
be regarded as the omission to apply the brake or act of
driving without applying the
brakes.[155] This
kind of argument is even stronger when government is involved. The pervasive
role of government in modern life means that government
‘inaction’
almost always occurs within the context of some government action, even if that
action is simply allocating
resources[156] or
providing the legal framework in which a private party
acts.[157] The
United States Supreme Court has held, for example, that constitutional rights
may confer certain obligations on government ‘when
the State takes a
person into custody and holds him there against his
will’.[158]
And, more wide-ranging arguments have been made along the same lines, though
without success in the
courts.[159] In
these situations, even a failure to act could be characterised as state
‘action’. This kind of analysis blurs the
distinction between
positive and negative
rights.[160]
The
problem with the second distinction - between public and private actors - lies
in determining who the relevant ‘actor’
is and the public or private
status of that actor. Where a private party performs a ‘public
function’ it may be possible
to cast it as acting in the role of
government and thus its acts as ‘state
action’.[161]
Similarly if the state forces or encourages a private party to act, its actions
might be ‘fairly attributable’ to the
state.[162] In the
United States, where most constitutional rights are understood to have only a
‘vertical’
operation,[163]
courts have dealt with this problem by developing a complicated series of tests
to determine whether there is ‘state action’
involved. These tests
that depend on such things as whether the action of a private party is
‘involved
with’,[164]
coerced, ‘encouraged’ or
‘authorized[165]’
by the state or is performing a ‘public
function’.[166]
The kind of analysis thus blurs the distinction between horizontal and vertical
rights. Where the state is sufficiently involved
in the actions of a private
party the relationship between that party and another individual can be recast
as a relationship between
the individual and the state.
The difficult nature
of these distinctions does not appear to have troubled the High Court. However,
its failure to appreciate the
difficulty of the vertical/horizontal distinction
has undermined its analysis of the relationship between the freedom of political
communication (and, more generally, the Constitution) and the common law.
In Lange the Court held that the sections of the
Constitution that establish the freedom of political communication
‘preclude the curtailment of the protected freedom by the exercise of
legislative or executive power.’
[167] By failing to
mention ‘the common law’, the Court adopts the position that the
freedom of political communication does
not apply (at least directly) to the
common law.
This position effectively reverses that taken in Theophanous v
Herald & Weekly
Times.[168] In
that case the majority, following the example of American constitutional law,
treated a rule of the common law as subject to constitutional
requirements in
much the same way as a statutory or executive rule. The Court adopted a new
constitutional rule that provided a defence
to common law actions in defamation
that was distinct from the common
law.[169] In
Lange, however, the position taken by Justice Brennan in his dissent in
Theophanous[170]
prevailed. The Lange Court held that the freedom of political
communication and the common law of defamation operated in separate spheres.
More fully,
the Court put it this way:
[T]he question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question ... defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of [the] Territories ... That is because the requirement of freedom of communication operates as a restriction on legislative power.[171]
In this light, it is not surprising that the rule enunciated in Theophanous (a constitutional defence to a common law claim) was abandoned in Lange.[172]
2. The Constitution’s Indirect Effect on the Common Law
Although I argue that this separation between the common law and legislative and executive power is wrong, I should acknowledge, however, that a further finding of the Court mitigates the effect of this separation. In Lange, the Court also held that the Constitution has an indirect effect on the common law:
The Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form ‘one system of jurisprudence’’ ... within that single system, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.’[173]
In Lange this meant that the common law of defamation had to conform to constitutional requirements of the freedom of political communication.[174]
Therefore, the practical effect of Lange is relatively clear. Despite the supposed distinction between the common law and legislative and executive power, courts will develop the common law to conform to constitutional values,[175] and those aspects of the law that reflect constitutional values are protected from legislative interference.[176] Nonetheless, as I will now show, the Court’s reasoning with respect to the relationship between the Constitution and the common law is deeply flawed.
The key feature of the Court’s reasoning on this point is the distinction it draws between the exercise of legislative or executive power (which is said to be directly subject to constitutional requirements) and the common law (which is said not to be, at least where it applies to regulation relations between individuals.)[177] Three rationales for the distinction can be found in the judgments, and I will argue that all are inadequate.
The justification most clearly apparent from Lange itself depends on the idea that the freedom of political communication is not a ‘personal right’. Consider once more the passage cited above:
Those sections [from which the freedom is implied] do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.[178]
The argument seems to be that although a ‘personal right’ might have some application to the common law, a mere limitation on power (like the freedom of political communication) does not.
A similar kind of argument also appears in Justice Brennan’s dissent in Theophanous, which first advanced the idea that the freedom of political communication only applies to legislative and executive power. He distinguishes between an ‘absolute freedom’ and a ‘freedom which is protected or guaranteed by law’:[179]
There are ... two distinct senses in which the term ‘freedom may be used. One is a freedom to do anything – an absolute freedom; the other is a freedom or immunity from legal regulation created, expressly or impliedly by the Constitution – a constitutional freedom. The Court is concerned only with the nature and scope of constitutional freedoms.[180]
The absolute freedom seems to correspond with a positive right (it confers a freedom that is protected even from private interference) whereas the ‘freedom guaranteed by law’ is a freedom from the interference of legal regulation.
In the light of the discussion in Parts I and II, however, it is quickly apparent that this line of reasoning is flawed. First, it simply does not follow from either of the possible meanings of ‘personal right’ that the freedom of political communication (or the Constitution more generally) does not apply to the common law. The fact that the freedom exists to protect a system of government rather than more ‘personal’ values does not establish that it has no application to the common law. On the contrary, as cases like Theophanous and Lange show, common law rules (like the rules of defamation) might threaten the proper operation of representative government. Therefore, if the freedom is to protect representative government, it must be concerned with the common law.
Further, if by stating that the freedom is not ‘personal’, the Court means to establish that it is a ‘negative’ freedom, the exclusion of the common law is similarly unconvincing. It is entirely consistent with the idea of a negative freedom that it would protect individuals from the operation of the common law. If the freedom of political communication is a ‘freedom from’ rather than a ‘right to’, then why is it not a freedom from the interference of the common law?
If the ‘personal right’ argument is to have any significance for the distinction between the enforcement of the common law and the exercise of legislative and executive power it must be found in arguments relating to the ‘vertical’ operation of the freedom. It is this feature that appears to be at the heart of two further arguments made for the distinction in Justice Brennan’s dissent in Theophanous.
2. A Limit on Powers Conferred by the Constitution
The first of these arguments is suggested by the passage from Justice Brennan’s dissent just quoted. He refers to ‘legal regulation created ... by the Constitution.’[181] The full significance of this reference emerges elsewhere in the judgment. Justice Brennan seems to suggest that the freedom of political communication applies only to powers conferred by the Constitution:
When governmental powers are conferred by the Constitution, their scope is impliedly limited to the extent necessary to maintain the structure of government prescribed by the Constitution. The limitation creates a freedom.[182]
It is difficult to discern the basis for the distinction between a right that applies to regulation created under constitutional powers and which confers immunity from the common law.[183] It may, however, rely on the idea that a right that applies to regulation created under constitutional powers is operating ‘vertically’ whereas a right that applies to the common law is operating ‘horizontally’.
In any event, the obvious reply to this argument is that, at least when
federal courts deal with the common law, they are exercising
a power that is
conferred by the Constitution. Just as the Constitution confers federal
legislative and executive power (in Chapters I and II), it confers federal
judicial power (in Chapter III). Thus
if the freedom of communication limits
powers conferred by the Constitution, it would also limit the exercise of
federal judicial power and thus the interpretation and development of the common
law by the
federal
courts.[184]
This argument does not, of course, solve the question of how the freedom of
political communication would apply to state and territory
courts enforcing the
common law.[185]
However, it is well settled that the freedom of political communication applies
to state and territory legislative and executive
power.[186] Once it
is established that the freedom of political communication limit federal
judicial power, as well as legislative and executive
power, there seems no
reason to draw the distinction at the state and territory level. Further,
considering that the power of state
and territory courts to enforce the common
law is conferred by
statute,[187] the
distinction between the exercise of state and territory legislative power and
the exercise of state and territory judicial power
becomes very blurry indeed.
In short, then, the application of the common law by courts resembles the
exercise of legislative and executive power more closely
than Justice Brennan
seems to recognize. At the federal level, all three powers are conferred by the
Constitution and thus on his analysis are limited by the implications drawn from
it. At the state and territory level, it is already accepted
that legislative
and executive powers are limited by the freedom. No reason is given to
distinguish the exercise of state and territory
judicial power and it is
difficult to imagine any such justification, given that state and territory
judicial power is itself conferred
by statute.
3. The Common Law as
Private
The vertical/horizontal distinction even more directly evident
in the second argument to emerge from Justice Brennan’s extended
treatment
of the relationship between the common law and the Constitution. Justice Brennan
relies upon a conception of the common law as ‘private’, as
principally concerned with relations between
individuals. By contrast, the
Constitution is seen as directed to government:
Although the Constitution prevails over the common law where there is inconsistency, there is no express inconsistency between the Constitution and those rules of the common law which govern the rights and liabilities of individuals inter se. That is because the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government, including powers to make laws which deal with those rights and liabilities. [188]
The result, on his analysis, is that the common law and the Constitution will only conflict in the limited circumstances in which common law doctrines address the structure and powers of government. In these circumstances the Constitution would override the common law (and thus the common law constitutional arrangements that existed before federation were displaced by the Constitution). But given the principally ‘private’ nature of the common law, he argues, such conflict is rare because the common law more typically deals with individual relations rather than government power:
The Constitution altered the common law by its provisions creating the structures and powers of the organs of government but it does not purport to affect the common law rights and liabilities of individuals inter se. That area of the common law and the area covered by the Constitution do not overlap.[189]
On this view, the freedom of political communication, as a
‘vertical’ right concerned only to prevent governmental
interference with political
discussion,[190] is
not concerned with the ‘private’ common law, such as the law of
defamation.[191]
This position, however, overlooks the governmental nature of the common law,
and runs counter to other aspects of the Court’s
reasoning in
Lange.
(a) Developing the Common Law is ‘State
Action’
The argument that the common law is ‘private’
confuses the subject of the common law with the nature of the power to develop,
interpret and enforce it. Although the subject of much of the common law
is the regulation of relations between individuals, the power to develop,
interpret and enforce the common law should be regarded as an act of government
in much the same way as legislative and
executive action.
A clear statement
of this position is found in American constitutional law in New York Times v
Sullivan.[192]
In upholding a claim that the law of defamation interfered with First Amendment
free speech rights, the Court held:
Although this is a civil lawsuit between private parties, the ... courts have applied a state [common law] rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute ... The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised.[193]
Thus New York Times recognizes that, although the act of an individual
might be adequately characterised as simply a private wrong by an individual
against
and individual, the state becomes involved either by protecting the
acts, or by vindicating the injured
party.[194] On the
American analysis, the freedom of political communication would apply to the
common law, even conceding the freedom’s
‘vertical nature’,
because it applies ‘vertically’ to protect the individual from the
government’s
enforcement of the common law.
The American doctrine
accords more readily with the realities of the exercise of government power.
Citizens are bound by common law
rules just as much as they are by statutory
rules. To argue that the application of the common law is not an exercise of
government
power (because the common law is ‘private’) simply
neglects the governmental nature of the common law enforcement.
The Supreme
Court of Canada has exhibited similar misunderstandings as appear in
Lange in its refusal to apply the Charter to common law disputes
between private
parties.[195] The
Supreme Court rejected the argument that enforcement of the common law was a
form of government power, on the basis that:
While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government ... I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that courts are not bound by Charter. The Courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute.[196]
It is of course true that the courts cannot be equated with one of the
‘contending parties’. Courts and the judges that
compose them are
taken not to have an interest in the outcome and that, in a sense, they act as
‘neutral’ arbiters. However,
that says nothing about the kind of
power they are exercising. Further, this reasoning seems to neglect the role
judges have in making
the common law, thus betraying a pre-realist understanding
of the common law as a body of law that the courts could somehow
‘discover’
and apply to cases before them, rather than as a body of
law that is itself created by
judges.[197]
Given
the unconvincing nature of the distinction between enforcement of the common law
and legislative and executive power, it is
not surprising that it leads to
absurd results. As Brian Slattery has observed in the Canadian context, the
proposition that the
Charter does not apply to the common law enforced
between private parties leads to the strange consequence that, where a statute
modifies the common law governing a particular subject but leaves other
aspects of the common law intact, only the statutory modifications
are directly
subject to Charter requirements, whereas the common law is only
indirectly subject to it through the requirement of
conformity.[198]
(b) The
American Position Distinguished?
Given the confusion underlying the
Australian and Canadian approached, the American understanding of the resolution
of common law
disputes by courts as ‘state’ action seems highly
preferable. The High Court does make some attempt to distinguish the
American
position and it is therefore necessary to address those arguments. In one of the
most puzzling passage in Lange, the High Court stated:
The First Amendment to the United States Constitution prohibits Congress from making any law abridging ‘the freedom of speech, or of the press.’ This privilege or immunity of citizens of the United States may not be abridged by the making of ‘the enforcement’ by any State of ‘any law’. That is the effect of the interpretation placed on the Fourteenth Amendment ... It makes little sense in Australia to adopt the United States doctrine so as to identify litigation between private parties over their common law rights and liabilities as involving ‘state law rights’. Here, ‘[w]e act every day on the unexpressed assumption that the one common law surrounds us.’[199]
The Court seems to have relied on two features of American constitutional law
to distinguish the American position: first that, in
the United States, the
common law is considered (as a general matter) to be state law; and second, that
the Fourteenth Amendment
is interpreted (through the doctrine of
‘incorporation’) to apply most of the rights in the Bill of Rights
to the states.
In the United States, the effect of these two propositions is
that the First Amendment (which, in its terms, applies only to the
federal
Congress) applies to the enforcement by the states of the common
law.[200]
Certainly
the Australian legal system does not share these distinctive features of
American law, but neither has much to say about
the application of the
Australian Constitution to the enforcement of the common law. First, it is
irrelevant that the common law is considered to be state law in the United
States,
while in Australia there is apparently ‘a single common
law’. In the Australian context it is clear that many constitutional
requirements, including the freedom of political communication, apply to the
exercise of state legislative and executive power. Therefore
there is no need to
consider whether the law in question is attributable to the states or the
Commonwealth. The real question is
whether the enforcement of the common law is
to be treated separately from other government functions (i.e. whether it is to
be regarded
as the action of government).
Once this point is understood, it
is also clear why the doctrine of incorporation is irrelevant to the Australian
context. It is only
because the common law in the United States is conceived of
as state law that there is a need to find some way to apply the provisions
of
the Bills of Rights to
it.[201] Therefore,
the absence of such a doctrine in the Australian context says absolutely nothing
about whether the Australian Constitution applies to the common
law.[202] Thus, the
relationship between the common law and the Constitution is not determined by
these two distinctive features of American law, but by the concept of the
enforcement of the common law as state
(in the sense of government) action.
Without a good explanation for why the enforcement of the common law is not
government action,
the reasoning underlying the American position is compelling.
(c) Inconsistency with the ‘Conformity’
Requirement
The final argument against the High Court’s position is
found in its own reasoning. The second of the two propositions endorsed
in
Lange – that the common law must conform to the
Constitution[203]
– betrays the notion that there is an element of state action in the
judicial enforcement of the common law. The reason the
idea of inconsistency
between the common law and the Constitution is unappealing is because
conflicting instructions seem to be coming from the same source. This reflects
our idea that the common
law and the Constitution are essentially products of
the same source: the state.
The argument that the common law is governmental
in nature is also consistent with Sir Owen’s Dixon’s writings, which
influenced the High Court’s understanding of the relationship between the
common law and the
Constitution.[204]
Dixon emphasized the Constitution’s common law origins: that the
Australian Constitution is a statute of the Parliament at Westminster, whose
powers are themselves conferred by the common law. In Dixon’s view
therefore,
the Australian Constitution exists by virtue of and, as his judgment
in Australian Communist Party v
Commonwealth[205]
makes clear, in certain cases is limited by, fundamental common law doctrines.
This close relationship between the common law and the Constitution does
assist the Court in reaching its conclusion that the common law must conform to
the
Constitution,[206]
but it also points to the more general proposition that common law enforcement
is governmental in nature. As one analyst of Dixon’s
constitutionalism put
it, ‘the statement that common law must conform to the Constitution is
merely an acknowledgment that the Constitution is itself derived from the common
law: they cannot be at odds because they are moulded from the same
stuff.’[207]
Thus,
by adopting the position that the common law must conform to the Constitution,
the Court effectively contradicts its earlier proposition that the Constitution
and the common law operate in separate spheres. If this were true, if (as
Justice Brennan put it) there was no
‘overlap’[208]
between the common law and the Constitution, then why would there be any concern
as to inconsistency between
them?[209]
The distinction drawn by the Lange court between the common
law and the Constitution is therefore unconvincing and inconsistent with other
aspects of the High Court's position. The Court should openly recognise that
the
Constitution requires that common law rules conform to the Constitution because
development and enforcement of the common law is a governmental act. To conclude
my argument, I should address some of the
arguments against reconceptualizing
the relationship between the common law and the Constitution in this way.
Perhaps most obviously, it might be said that the reconceptualization I
advocate makes little difference. There is something to this
point. After all,
one of the arguments that I make against the Court’s current analysis is
that it actually treats the common
law as if it were subject to the Constitution
by requiring that the common law conform to the Constitution. Further, the
current ‘indirect method’ of applying the Constitution to the common
law may have some advantages. Existing common law doctrine provides a base from
which the courts can make the required
changes.[210]
However, the fact that the High Court is already acting as if the common law is
subject to constitutional requirements is really
an argument for reconfiguring
its reasoning to match its results. Further by continuing the current
method of applying the Constitution to the common law, the Court could
preserve any benefits in the current approach.
The important thing about
the analysis I advocate is that it provides the courts with the right analysis
to explain their actions
and having the right analysis is likely to help the
further development of the doctrine. The time may come when the High Court is
faced with a claim that a private party has infringed the freedom of political
communication because its private actions were supported
by the state, or
because it is performing a traditionally public
function.[211] The
Australian courts might decline to apply the freedom of political communication
(or any other constitutional doctrine at issue)
in these circumstances, and
might even adopt the position that state encouragement of private action or the
private performance of
public function never justifies a finding that the
freedom of political communication has been infringed. If the courts adopt the
approach I have suggested,
however, they will at least be asking itself the
right question - where does the state’s responsibilities for its action
end?’
– rather than relying upon an artificial distinction between
forms of government power.
The second point that might be put against my
suggestion that the development of the common law be treated as state action is
that
‘state action’ has proved a particularly difficult concept for
the American
courts.[212] The
standard analysis is that the concept of state action is over-inclusive.
Whenever a dispute reaches a court, it is almost always
possible to identify
some state action in the matter, even if it is simply that the general law
protects the act complained of.
This criticism applies especially clearly to
the general recognition that the enforcement of the common law constitutes state
action.
That proposition was established by Shelley v
Kraemer,[213] in
which the United States Supreme Court found that the enforcement of a common law
restrictive covenant prohibiting occupancy of
residential property by non-whites
violated the Fourteenth Amendment’s equal protection
requirement.[214] As
Professors Gunther and Sullivan explain:
If Shelley were read at its broadest, a simple citation of the case would have disposed of most subsequent state action cases. Some seemingly ‘neutral’ state nexus with a private actor can almost always be found at least by way of the usual state law backdrop for the exercises of private choices ... Given the entanglement of private choices with law, a broad application of Shelley might in effect have left no private choices immune from constitutional restraints.[215]
The point is readily transferable to the freedom of political communication.
If the Shelley principle were consistently applied, the owner of private
property who wished to limit the discussion of federal politics, or limit
advocacy of particular views about federal politics, on that property could be
subject to the freedom of political
communication.[216]
The owner’s private choice to restrict free political discussion is
ultimately backed by the law of trespass, and (on the Shelley approach)
that would be sufficient to satisfy the ‘state action’ requirement.
Of course, we have a strong intuition that
such action should be regarded as
private, rather than
governmental.[217]
The state seems really to be acquiescing in the private choices of another.
However, it is difficult to find a satisfactory means
of distinguishing between
circumstances where the state’s role in providing the legal framework for
private action is mere
inaction and where it is constitutionally problematic.
The danger of adopting Shelley, then, is that Australian courts
would launch themselves on a search for a principle to limit state action
doctrine, a search that has proved
so troublesome for their American
counterparts.
The argument that developing a state action doctrine is too
difficult to attempt is not, however, entirely persuasive. There is an
important
point of distinction between Shelley and cases like Lange. In
Lange (and for that matter New York Times) are particularly easy
cases in which to find unconstitutional state action. They are cases in which
the content of rules of the common law offended a constitutional
limitation. The common law of defamation simply did not give sufficient
protection
to political discussion. In such a case, not only is state action
readily
apparent,[218] but
the unconstitutional feature of the arrangement is evident in the face of the
rule, rather than in the private ordering it is
used to support. In
Shelley, on the other hand, the law relied upon (the law of restrictive
covenants) was, on its face, apparently neutral, and the unconstitutional
racial
discrimination lay in the private arrangement (the particular restrictive
covenant at
issue).[219] In
recognising the existence of state action in a case like Lange, the
Australian courts would thus only be adopting the most uncontroversial feature
of state action doctrine. Far from abandoning
any limit on the application of
rights to ‘private’ action, it would recognize only that
constitutional limitations apply
to the enforcement of common law rules, the
content of which violate the relevant constitutional principle.
In any
event, there is a more fundamental reason that the Australian courts cannot
avoid the task of identifying where there is state
action. State action doctrine
of some kind is a logical consequence of regarding the freedom of political
communication as one that
limits government power. Of course, the Court
describes the freedom as one that limits only legislative and executive power.
But,
as I have explained above, the freedom is best understood as a limit on the
actions of government generally, as there is no good
reason to exclude the
enforcement of the common law from the concept of state action. If that is the
case, then the Court has to
embark on the course of determining when the
government acts. As difficult a task as it may be, the question is an inherent
part
of the way that the Court has defined the freedom.
Conclusion
The theoretical confusion that this argument has revealed is rather disappointing. The confusion is perhaps the inevitable result of the compromise struck in Lange, where the freedom was retained, despite waning judicial support, but in an apparently confined form.[220] I have argued elsewhere that the revised doctrine shows a misplaced confidence in the constraining power of ‘constitutional text and structure’.[221] In this article, I address the consequences that might be thought to follow from the statement that the freedom of political communication is not a personal right: that it covers only communication that is explicitly about federal politics, that it serves only ‘institutional’ values, and that it limits only federal legislative and executive power. I have challenged all three conclusions. I have argued that, even accepting that the freedom is not a personal right, it covers a wide range of communication and may (depending on how the High Court develops its understanding of representative government) require some protection of the ‘personal’ value of autonomy. Further, it should be understood to have direct application to the common law. These findings are potentially very significant for the future development of the freedom of political communication. Although the courts are currently interpreting the freedom very narrowly, it would be consistent with basic principles for it to confer rather extensive protection of freedom of speech.
This article was published in the Melbourne University Law Review,
Volume 25, Number 2, 2001
* Faculty of Law,
Australian National University. This article forms part of the author’s
JSD dissertation at Columbia University
School of Law. Thanks are due to Kent
Greenawalt, Vincent Blasi and Michael Dorf for their supervision of my doctoral
work and to
Graeme Hill for insightful reviews of several earlier drafts.
[1] See
Australian Capital Television v Commonwealth (1992) 177 CLR 104, 135
(Mason CJ), referring to the ‘[i]mplication of fundamental rights’;
227 (McHugh J): ‘ [T]he people of Australia
have constitutional rights of
participation, association and communication in relation to federal
elections.’ See also, Geoffrey
Kennett, ‘Individual Rights, the High
Court and the Constitution’ [1994] MelbULawRw 4; (1994) 19 Melbourne University Law
Review 581, 596, 604-09; George Williams, Human Rights under the
Australian Constitution (1999) 62, George Winterton et al, Australian
Federal Constitutional Law (1999) 606, Leslie Zines, The High Court and
the Constitution (4th ed 1999) 389.
[2] See for example,
Australian Capital Television (1992) 177 CLR 104, 140 (Mason CJ), 149
(Brennan J), 168 (Deane and Toohey JJ); 208 (Gaudron J); 227 (McHugh J).
[3] See Lange v
Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 560. See also below
n 142 and accompanying text.
[4] The freedom of
political communication is a structural implication drawn from the existence of
certain institutions of representative
and responsible government found in the
text. See Australian Capital Television (1992) 177 CLR 104; Lange
[1997] HCA 25; (1997) 189 CLR 520. That is, the representative and responsible government
set up by the Australian Constitution is said to imply the freedom of political
communication necessary to sustain it. The argument that gives rise to the
freedom of political
communication is similar to that proposed by Professor
Charles Black in Structure and Relationship in Constitutional Law (1969).
Professor Black suggested that much of the protection of freedom of speech,
assembly and petition currently granted under
the First Amendment, could be
implied, even in the absence of constitutional text, as necessary to ensure the
proper workings of
the national government. Black, ibid,
40-48.
[5] See
Williams, above n 1, 168: ‘By comparison [with freedom of speech under the
First Amendment and the Canadian Charter of Rights and Freedoms] the
freedom of political communication implied from the Australian Constitution is
far more limited in its scope. It has an institutional rather than an individual
foundation in that it is designed to facilitate
the operation of representative
government and not, except incidentally, to promote the general welfare of the
individual.’
[6]
Civil and political rights such as those found in most Constitutions, are
usually conceived as ‘negative’ rights - rights
against certain
kinds of interference (usually by government). See, for example, Bowers v De
Vito, [1982] USCA7 680; 686 F. 2d 616, 618 (1982) (Posner J.): ‘The Constitution is a
charter of negative liberties; it tells the state to let people alone; it does
not require the federal government or the state
to provide services, even so
elementary a service a maintaining law and order’. ‘Social and
economic rights’ such
as rights to education, health care, housing and
social security are commonly advanced forms of positive rights. It may be
preferable
to use the distinction, drawn in international human rights law
between ‘first generation’ rights (the traditional civil
and
political liberties) and ‘second generation’ rights (the social and
economic claims). See Philip Alston, ‘A
Third Generation of Solidarity
Rights’ (1987) 29 Netherlands International Law Review 307,
discussing ‘third generation’ rights, which seek to secure the
welfare of communities or peoples rather than
individuals.
[7] By
‘coverage’ I mean the category of communications that are accorded
some level of protection under the freedom. ‘Protection’,
on the
other hand, refers to the degree or extent to which such communications are
immune from regulation. See generally, Frederick
Schauer, Freedom of Speech:
A Philosophical Enquiry (1981), 89-91. The distinction is reflected in the
two stage test set out in Lange [1997] HCA 25; (1997) 189 CLR 520, 567: ‘When a
law ... is alleged to infringe [the freedom of political communication] two
questions must be answered ... First,
does the law effectively burden freedom of
communication about government or political matters either in its terms,
operation or
effect? Second if the law effectively burdens that freedom, is the
law reasonably appropriate and adapted to a legitimate end the
fulfilment of
which is compatible with the ... system of government prescribed by the
Constitution[?]’ [footnotes and internal quotation marks omitted].
[8] See below Part I
A.
[9] Since
Lange [1997] HCA 25; (1997) 189 CLR 520, the Court has insisted that the doctrine is
limited to protecting only those institutions of representative and responsible
government
identifiable in the text. See below n 15-17 and accompanying text.
[10] Lange
[1997] HCA 25; (1997) 189 CLR 520,
566.
[11] See below
nn 214-16 and accompanying
text.
[12] See
below nn 119-24 and accompanying
text.
[13] See,
Richard Fallon, ‘Individual Rights’ (1993) 27 Georgia Law Review
343; Kent Greenawalt, ‘Free Speech Justifications’ (1989)
Columbia Law Review 119, 127.
[14] Referring to
the ‘interest’ the freedom serves seems to suggest that its
justification is ‘consequentialist’
i.e., that is justified because
it gives rise to some desirable state of affairs (as opposed to a
‘non-consequentialist’
justification which would assert that the
principle is ‘right’ or ‘just’ irrespective of its
consequences).
See Greenawalt above n 13, 127-28. However, the argument better
falls into a category that Professor Greenawalt describes as ‘coherence
arguments’, arguments that ‘given certain institutions or practices,
having freedom of speech is required, or at least
is positively
indicated.’ Ibid, 129. As Greenawalt points out ‘[a] full
defense of such an argument requires reasons why the underlying institutions may
be
taken as starting points and reasons why free speech connects to the
underlying institutions.’ Ibid, 130. I will not attempt that full
justification here. Suffice it to say the argument would have two steps: (1) an
argument for the
legitimacy of the Australian Constitution; and (2) an argument
that these institutions ought give rise to a freedom of political communication.
On the first point see Geoffrey
Lindell, 'Why is Australia's Constitution
Binding? The Reasons in 1900 and Now, and the Effect of Independence' [1986] FedLawRw 2; (1986) 16
Federal Law Review 29. The second point is addressed most clearly by the
High Court in Lange [1997] HCA 25; (1997) 189 CLR 520, see also Australian Capital
Television (1992) 177 CLR 104.
[15] Lange
[1997] HCA 25; (1997) 189 CLR 520, 566-67.
[16] Lange
[1997] HCA 25; (1997) 189 CLR 520, 560, quoting Australian Capital Television [1992] HCA 45; (1992) 177
CLR 106, 187 (Dawson
J).
[17]
Lange [1997] HCA 25; (1997) 189 CLR 520,
561.
[18] Though it
apparently does not cover ‘offensive’ satire of members of
Parliament. See below nn 34-35 and accompanying
text.
[19] See below
Part I A.
[20]
Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 50 (Brennan J). Other expressions
include ‘public affairs and political discussion’, ‘the
government of the Commonwealth’;
‘all political matters’;
political discourse’ and ‘communication in relation to federal
election Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106, 138 (Mason
CJ); 169 (Deane and Toohey JJ); 214 (Gaudron JJ) and 227 (McHugh
J).
[21] See below
nn 88-89 and accompanying
text.
[22] For a
review of these decisions, see Adrienne Stone, ‘The Freedom of Political
Communication since Lange’ in Adrienne Stone and George Williams
(eds) The High Court at the Crossroads: Essays in Constitutional Law
(2000).
[23]
For a critique of this part of the Lange decision, see Adrienne Stone
‘The Limits of Constitutional Text and Structure’ [1999] MelbULawRw 26; (1999) 23
Melbourne University Law Review
668.
[24] [1997] HCA 31; (1997)
189 CLR 579.
[25]
Levy [1997] HCA 31; (1997) 189 CLR 579, 596 (Brennan J); 626 (McHugh
J).
[26] See,
Theophanous [1994] HCA 46; (1994) 182 CLR 104, 122 (Mason CJ, Toohey and Gaudron JJ);
164 (Deane J).
[27]
[1998] FCA 319; (1998) 154 ALR
67.
[28]The article
contained the declaration that ‘the injunction against stealing from
capitalism is itself a capitalist ideology
and should be spurned as such’.
Brown v Classification Review Board [1998] FCA 319; (1998) 154 ALR 67,
89.
[29] [1998] FCA 319; (1998) 154
ALR 67, 87 (Heerey J). See also the judgment of Sundberg J: ‘[T]he article
does not relate to the exercise by the people of a free
and informed choice as
electors.’ [1998] FCA 319; (1998) 154 ALR 67, 98. Sundberg J also took this view because
only a small portion of the article was devoted to material that could be
described as
‘political’, the article was ‘overwhelmingly a
manual about how successfully to steal.’
Ibid
[30] John
Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA
198
[31] Section
101 of the Supreme Court Act 1970 (NSW) allowed the Attorney-General of
New South Wales to bring appeals against an acquittal for contempt. The appeals,
which were
to be held in camera, had no legal effect on the acquittal but
allowed the Court of Appeal to clarify matters of law. The New South
Wales
courts exercise state and federal jurisdiction and, as a result, the contempt
proceedings the subject of s 101 might relate to the prosecution of a federal
offence. Therefore, ‘the policy of a State Attorney manifest in the
contention
put on her or his behalf may be relevant to decisions at a
Commonwealth level on the exercise of such powers as the Commonwealth
may have
to affect the operations of State courts in the exercise of federal jurisdiction
or, indeed, whether to modify the conferral
of such jurisdiction.’
Fairfax [2000] NSWCA 198 para 105 - 106.
[32] In
particular, the majority in Fairfax recognized that the possibility that
Commonwealth might chose to act in relation to some issue might make discussion
that issue one
that the freedom should cover. I make this point below nn 61- 64
and accompanying text. (Spigelman CJ with whom Priestly JA
agreed).
[33]
[2000] NSWCA 198 para
[83].
[34]Australian
Broadcasting Corporation v Hanson (Unreported, 28 September 1998).
[35] The
Court’s reasoning as to the freedom of political communication issue is
strikingly brief: ‘Enjoining the broadcast
of this material could not
possibly be said to infringe against the need for free and general discussion of
public matters fundamental
to our democratic society. These were grossly
offensive imputations relating to the sexual orientation and preference of a
Member
of Parliament as part of a fairly mindless effort at cheap
denigration.’ Australian Broadcasting Corporation v Hanson
(Unreported, 28 September 1998). The High Court subsequently denied special
leave to appeal with no further argument about the freedom
of political
communication. See Australian Broadcasting Corporation v Hanson,
Transcript, 24 June 1999 (High Court of
Australia).
[36]
Especially considering that in Fairfax the freedom of political
communication claim succeeded. See above n
31.
[37] In
Levy, the countervailing interest was the physical safety of protesters
close to the duck hunt, in Hanson, the protection of Ms Hanson’s
reputation and in Fairfax, the ‘in camera’ requirement
protected the acquitted person from further public scrutiny. Brown could
be justified on the basis that the interest in the prevention of illegal
activity outweighed the value of the political message
in the suppressed speech,
a conclusion that would be strengthened by the fact that the ideological
material in the article was overwhelmed
by the material describing how to commit
a crime. This final point was made by Sundberg J, see above n
29.
[38] See above
n 7.
[39] Levy
[1997] HCA 31; (1997) 189 CLR 579, 599 (Brennan CJ); 609 (Dawson J); 614-615 (Toohey and
Gummow JJ); 619-20 (Gaudron J); 627-28 (McHugh J); 648 (Kirby J). This was
also
the position taken by Justice French, the third member of the Court in
Brown. See Brown [1998] FCA 319; (1998) 154 ALR 67,
80.
[40] Where a
court reaches that conclusion, a claim for infringement fails at the first step,
and it is unnecessary to consider the separate
question of whether the
particular law in question was a permissible regulation of political
communication. Lange [1997] HCA 25; (1997) 189 CLR 520,
567-68.
[41] See
above n 16 and accompanying
text.
[42] Levy
[1997] HCA 31; (1997) 189 CLR 579,
592.
[43] See
Tasmania v Commonwealth [1983] HCA 21; (1983) 158 CLR 1 (upholding legislation
protecting wilderness areas in Tasmania enacted pursuant to the external affairs
power in s
51(xxix)).
[44] See
Murphyores v Commonwealth (1976) 136 CLR 1 (upholding federal legislation
designed to protect the environment of Fraser Island under the trade and
commerce power found in s 51
(1)).
[45] The
federal Parliament’s power under section 96 of the Constitution to make
grants to states ‘on such terms and conditions as the Parliament thinks
fit’ is subject to few, if any, restrictions.
See Victoria v
Commonwealth [1957] HCA 54; (1957) 99 CLR 575, 604 (Second Uniform Tax
Case).
[46]
This interpretation was rejected by Justice Brennan who found that ‘the
plaintiff’s intended protest related to the discrete
State issue of the
appropriateness of the relevant Victorian law.’ Levy [1997] HCA 31; (1997) 189 CLR
579, 596. His analysis of the plaintiff’s intention [the protester against
the duck hunt] is at least questionable. An activist
against duck hunting may
well have a broader environmental agenda that she intends to promote by
protesting a discrete issue. In
any event, it is not clear why the intention of
the plaintiff on this matter should be relevant. If the message the plaintiff
intends
to communicate actually is relevant to federal matters, then why
shouldn’t it be within the coverage of the freedom? Further, even if the
message was as
limited as Justice Brennan’s suggests, the Federal
Parliament might have the power to render the state law invalid by passing
its
own law or, at least, could seek to influence Victorian policy on these matters
through its section 96 power to make conditional grants to
states.
[47] The
purpose behind a law is generally irrelevant for the purpose of determining
whether a law is within power. The exception being
the few powers recognized to
nominate a purpose that the Parliament may pursue such as the defence power (s
51 (vi)) and the treaty implementation aspect of the external affairs power (s
51 (xxix)). Typically, a law will be within power as long as it operates
in a manner that it is sufficiently closely related to the ‘subject
matter’ of the power. Herald and Weekly Times Ltd v Commonwealth
(1966) 11 CLR 418; Murphyores Inc Pty Ltd v Commonwealth (1976) 136
CLR 1. See, Leslie Zines, The High Court and the Constitution
(4th ed, 1997)
27-8.
[48] The
fiscal dominance of the Commonwealth gives it much political influence, see
Zines, ibid,
[303-05].
[49]
[1998] FCA 319; (1998) 154 ALR 67, 80 (French J).
[50] Though the
case itself concerned state courts, the statement appears to be of more general
import, implying that discussion of the
conduct of federal courts is also
excluded from the coverage of the freedom. The majority rejected the contention
that ‘the
conduct of the judiciary was itself a legitimate matter of
public interest’ with a statement clearly directed to courts in
general
rather than state courts specifically: ‘[t]he conduct of courts is not, of
itself, a manifestation of any of the provisions
relating to representative
government upon which the freedom is based.’ Fairfax [2000] NSWCA
198, paras [82],
[84].
[51]See,
Migration Act 1958 (Cth) Part VIII. The restrictions in Part VIII were
introduced in 1994 in as a result of government frustration with
‘activist’ judicial decisions on refugee issues
and in response to a
perceived ‘refugee crisis’. See Mary Crock ‘Judicial Review
and Part 8 of the Migration Act: Necessary Reform or Overkill?’ [1996] SydLawRw 14; (1996) 18
Sydney Law Review 267.
[52] The way state
courts interpret federal statutes might, for example, be relevant to federal
decisions as to whether state courts should
continue to exercise federal
jurisdiction either generally or in relation to some specific matter.
Confusingly, the New South Wales
Court of Appeal recognized this fact in the
particular circumstances where the State Attorney-General was responsible for
bringing
appeals, but did not adopt the more general point. See Fairfax
[2000] NSWCA 198, para [106], see above n
31.
[53] The song
(by a gay singer/comedian who used the name ‘Pauline Panstdown’) was
entitled ‘I’m a Back Door Man’.
It seems intended to satirize
Ms Hanson’s conservative social views by portraying her as a homosexual
man. It included the
following lyrics: ‘ I’m a back door man,
I’m very proud of it. I’m a back door man, I’m homosexual.
I’m very proud that I’m not natural. I’m a backdoor man for
the Ku Klux Klan with very horrendous plans’.
The song used snippets of
recordings of Ms Hanson’s voice, particularly her characteristic phrase
‘Please
Explain.’
[54]
This conclusion is especially troubling in the light of statements in
Levy, allowing for the coverage of communication that appeals to emotion
(see Levy[1997] HCA 31; , (1997) 189 CLR 579, 613 (Toohey and Gummow JJ); 623 (McHugh
J)).
[55] In
Hustler v Falwell [1988] USSC 24; (1988) 485 US 46, the Supreme Court of the
United States, considering a particularly offensive and obviously inaccurate
cartoon, recognized that ‘[t]he
art of the cartoonist is not reasoned, or
even handed but slashing and one-sided’, its force lies in ‘the
emotional impact
of its presentation’ and because ‘[i]t continuously
goes beyond the bounds of good taste and conventional manners.’
Hustler
v Falwell [1988] USSC 24; (1988) 485 US 46, 54 quoting C Press The Political Cartoon
251 (1981).
[56] Remembering,
of course, that any communication recognized as ‘covered’ by the
freedom of political communication could
still be regulated, even suppressed
entirely, if the regulation meets the requirement, set down in Lange,
that it be ‘reasonably appropriate and adapted to serve a legitimate end
the fulfillment of which is compatible with the maintenance
of ... the system of
government prescribed by the Constitution’. Lange [1997] HCA 25; (1997) 189 CLR
520, 567. See above n 7.
[57] Robert H.
Bork, ‘Neutral Principles and Some First Amendment Problems’ (1971)
47 Indiana Law Journal 1, 27-28.
[58] See above nn
50-52 and accompanying
test.
[59] These
issues that have been the subject of public debate in Australia but are not part
of the policy proposals before the federal
Parliament. It should be noted,
however, that Pauline Hanson’s One Nation Party apparently supports a
referendum on the introduction
of the death penalty for certain offences see, http://www.onenation.com.au/Forms/Policies.html.
However, there is only a single Senator representing that party in the Senate
and the policy has not been seriously discussed in
the
Parliament.
[60]
For example, the Australian Labor Party specifically opposes the introduction of
the death penalty. See Australian Labor Party, Platform and Policies 2000,
as adopted at the 42nd National Conference - Hobart, 31 July to 3 August,
Chapter 11 para 18; the National Party of Australia specifically
opposes change
to the Australian Flag. See ‘Our National Framework: Constitution and
Parliament’
http://members.ozemail.com.au/~npafed/.
[61]
See below n
77.
[62] The New
South Wales Court of Appeal struggled with the breadth of this category in the
Fairfax case. Although excluding the conduct of courts from the coverage
of the freedom, the majority did concede that the prospect of a future
constitutional referendum on the judicial power provisions of the Constitution
could make the current discussion of the conduct of courts relevant to the
referendum process (a constitutionally protected institution
of representative
government). Nonetheless, the majority did not accept that this argument brought
the issue within the coverage
of the freedom, noting that to accept it
‘would lead to the conclusion that there was virtually no subject that was
not of
a ‘governmental or political’ character’ See, John
Fairfax Publications Pty Limited v Attorney-General (NSW) [2000] NSWCA 198,
para [84]. It did not, however, articulate any principled basis for the
limitation.
[63] In
response to a claim brought by gay activists, the United Nations Human Rights
Committee ruled that certain sections the Tasmanian
Criminal Code (outlawing,
inter alia, homosexual sex) were breached Australia’s obligations the
International Convention on
Civil and Political Rights. In response, the federal
government proposed and the Parliament passed the Human Rights (Sexual Conduct)
Act 1994 (Cth) overriding the Tasmanian law. See, Simon Bronnitt, ‘The
Right to Sexual Privacy, Sado-Masochism and the Human Rights (Sexual Conduct)
Act 1994 (Cth)’ (1995) 2 Australian Journal of Human Rights
519.
[64] See above nn
47-48 and accompanying
text.
[65] The
‘Stolen Generation’ refers to Aboriginal and Torres Strait Islander
children forcibly removed from their families
by state and territory governments
from the early part of the century to the early 1970s. See generally Bringing
Them Home: Report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from Their
Families (Human Rights and Equal
Opportunity Commission, 1997).
[66] In
response to McBain v Victoria [2000] FCA 1009, finding that the
requirement of s 8(1) the Infertility Treatment Act 1995 (Vic) that a
recipient of infertility treatment be ‘married and living with her husband
on a genuine domestic basis’
or ‘living with a man in a de facto
relationship’ was inconsistent with s 22 of the Sex Discrimination Act
1984 (Cth) and thus that the former provision was invalid under s 109 of the
Constitution.
[67]
Compare Bringing the Home above n 65 with Healing: A Legacy of
Generations (Senate Legal and Constitutional References Committee, Report of
the Inquiry into the Federal Government’s Implementation of
the
Recommendations Made by the Human Rights and Equal Opportunity Commission in
Bringing Them Home, 2000). See also, John Herron, ‘A
Generation was Not Stolen’, The Sydney Morning Herald, 4 April
2000’; Peter Howson, ‘The Truth about the ‘Stolen
Generation’’, The Age, 13 April 2000; ‘Editorial:
Stolen Children, Stolen History’, The Age, 16 April 2000;
‘Fury over Government’s Denial’, The Age, 3 April 2000;
Paul Kelly ‘Time for Howard to Listen’, The Australian, 29
May 2000.
[68] The
Prime Minister’s refusal to apologize to the ‘Stolen
Generation’ is associated with his decrial of the ‘black
arm
band’ view of Australian history, which he takes to be the view that
Australian history is ‘a disgraceful story of
imperialism, exploitation,
racism, sexism and other forms of discrimination.’ Mr Howard’s view
is that, ‘the balance
sheet of our history is one of heroic achievement
and that we have achieved much more as a nation of which we can be proud than of
which we should be ashamed.’ See the Hon. John Howard MP, ‘The
Liberal Tradition: The Beliefs and Values which Guide
the Federal
Government’, 1996 Sir Robert Menzies Lecture, 18 November 1996. See
generally, Mark McKenna ‘Different Perspectives
on Black Armband
History’, Commonwealth Parliamentary Library Research Paper No. 5, 1997;
Gerard Henderson, ‘The Howard
View of History’ The Sydney Morning
Herald, 4 April
2000.
[69] The
Prime Minster has consistently maintained the view that a ‘formal national
apology’ is not appropriate in part because
of his view that most
individual Australians living today bear no responsibility for these acts. See
House of Representatives Hansard,
The Hon. John Howard MP, 26 August 1999, pp
9206-07. See also Healing: A Legacy of Generations, above n 67, paras
4.12-4.26.
[70]
‘Lesbians make Good Parents too: IVF Couple’ The Age 3 August
2000; Leslie Cannold, ‘The Disappearing Father’ The Age 3
August 2000; Michael Grose, ‘Dads Make a Difference’ The
Age, 3 August
2000.
[71] The Hon.
John Howard MP, ‘Media Release: Amendment to Sex Discrimination Act’
1 August 2000: ‘This issue primarily involves the fundamental right of a
child within our society to have the reasonable
expectation, other things being
equal, of the care and affection of both a mother and a father.’ Compare,
Cathy Sherry, ‘A
Question of Rights: Mother’s and
Child’s’ The Sydney Morning Herald, 4 August 2000;
Bill Uren, ‘IVF: The Heart of the Matter’, The Age, 4
August 2000 (regretting use of the language of ‘rights’ and
‘discrimination’).
[72]
Alison Caddick, ‘What’s Love got to do with it?’ The Sydney
Morning Herald, 26 August
2000.
[73] The Hon.
John Howard MP, ‘Media Release: Amendment to Sex Discrimination Act’
1 August 2000; Explanatory Memorandum, Sex Discrimination Amendment Bill
(No.1) 2000; ‘[I]t is consistent with the States’
responsibilities in relation to the regulation of the provision of medical care
and treatment that they be permitted to regulate access to ART [assisted
reproductive technology]
services.’
[74]
Alexander Meiklejohn, ‘The First Amendment is an Absolute’ (1961)
Supreme Court Review 245, 257, though his initial view was rather more
restrictive. See, Alexander Meiklejohn, Freedom of Speech and Its Relation to
Self-Government (1948) 22-27, distinguishing between speech on matters of
public concern and other
speech.
[75]
Ibid,
255.
[76] Ibid,
263 (internal quotation marks
omitted).
[77] Of
course, there may be some easily identifiable, common sense limits. It is
difficult to imagine that work place or ‘back-fence’
gossip about
the personal lives of private individuals could be considered political
communication. There is also the intriguing
question, which I put to one side,
as to whether advocacy of the violent overthrow of government is covered by the
freedom. See,
generally Schauer above n 7, 194-95. Even accepting exclusion of
these matters, the remaining category is disturbingly broad.
[78] Laurence H
Tribe, American Constitutional Law (2nd ed,
1988) 786-87 789; Zechariah Chafee, Book Review, (1949) 62 Harvard Law
Review 891,
899-900.
[79] When
nominated to the United States Supreme Court, Bork recanted this view of the
First Amendment before the United States Senate
during his (ultimately
unsuccessful) confirmation hearing. See, Cynthia L. Estlund, “Speech on
Matters of Public Concern: The
Perils of an Emerging First Amendment
Category” (1990) 59 George Washington Law Review 1, 2 n
11.
[80] Bork above
n 57, 27.
[81]
Ibid,
28.
[82]
Ibid,
27.
[83] See,
Lillian BeVier ‘The First Amendment and Political Speech: An Inquiry into
the Substances and Limits of the Principle’
(1978) 30 Stanford Law
Review 299,
344.
[84] Ibid,
345. See also Frederick Schauer, ‘Fear, Risk and the First Amendment:
Unraveling the ‘Chilling Effect’’
(1978) 58 Boston
University Law Review 685, arguing that the doctrine of the ‘chilling
effect’ reflects a choice to extend protection of libelous speech beyond
that which is strictly required by constitutional principle in order to protect
the speaker and publishers of protected speech from
the possibility of erroneous
defamation judgments against
them.
[85] BeVier
points to the particular difficulties posed by ‘mixed utterances’
i.e., those that combine protected and unprotected
speech (ibid, 326-27)
and to the complexity of cases in this area: ‘[F]irst amendment cases do
not present factual situations that fall into
readily identifiable or relatively
stable analytic categories. They present, rather, factual variations along
several ever-shifting
continuums. The vindication of first amendment principle
depends on the identification and evaluation of a multitude of variables,
which
are often interdependent ... The presence of so many variables makes first
amendment cases significantly different from one
another ... it is inescapably
difficult to discover, describe and relate their differences to relevant
doctrinal patterns.’
Ibid,
329-30.
[86]
Further the argument for category four communications runs into questions about
the institutional capacities of judges. It is not
at all clear how judges would
assess whether communications develop qualities like intelligence, sensitivity
and integrity. See BeVier
above n 83, 317.
[87] See above n
16 and accompanying
text.
[88] See
above n 86 and accompanying
text.
[89]
Theophanous [1994] HCA 46; (1994) 182 CLR 104,
125.
[90]
Theophanous [1994] HCA 46; (1994) 182 CLR 104, 124 (Mason CJ, Toohey and Gaudron JJ),
quoting Eric Barendt, Freedom of Speech (1985)
152.
[91] See,
Chafee above n 78, 899-900: ‘[The] supposed boundary between public speech
and private speech is very blurred ... Birth
control is the most personal of all
matters and yet any discussion of it raises questions of the desirable, size of
our population,
the intelligent rearing of children, dependency, immortality and
the clerical control of votes. The truth is that there are public
aspects to
practically every subject.’
[92] The most
commonly advanced arguments for freedom of speech are (1) the argument that it
promotes the search for ‘truth’;
(2) the argument that it promotes
‘autonomy’ and (3) the argument that it promotes democratic or
self-government (see
below n 92). See Greenawalt above n 13; Schauer above n 7,
15-72; Wojciech Sadurski, Freedom of Speech and Its Limits (1999) 16-20.
[93]On
‘democracy’ as a justification for freedom of speech see Greenawalt,
above n 13, 145-46; Schauer above n 7, 35-46.
A related justification advanced
by Vincent Blasi is that freedom of speech serves the purpose of
‘checking’ the abuse
of official power. Vincent Blasi, ‘The
Checking Value in First Amendment Theory’ (1977) 3 American Bar
Foundation Research Journal 521. Although this argument, which Professor
Blasi suggests should operate in conjunction with other arguments for freedom of
speech,
has much in common with the ‘self-government’ justification
(see below n 92), it focuses on the particular problem of
misconduct by
government officials. It therefore provides justification for a highly
protective attitude to a narrow category of
speech, speech that is capable of
checking misconduct (by subjecting it to public scrutiny and, ultimately
sanction at the ballot
box). Ibid,
557-58.
[94]Some
American theorists have preferred the expression ‘self-government’
on the basis that this is the fundamental value
that underlies democratic
government. See Alexander Meiklejohn, Freedom of Speech and its Relation to
Self-Government, (1948) 3, see also, Robert Post, ‘Meiklejohn’s
Mistake: Individual Autonomy and The Reform of Public Discourse’
(1993)
University of Colorado Law Review 1109, 1114-15:
‘[M]ajoritarianism, from the perspective of traditional First Amendment
doctrine, is merely a mechanism for decision
making that we adopt to reflect the
deeper value of self-government’. Unless I think the difference is
pertinent I will use
the term ‘democratic government’ without
meaning to distinguish between the two
concepts.
[95] See
generally, Greenawalt, above n 13, 143, 151-52; Schauer above n 7,
67-72.
[96] See TM
Scanlon, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy
and Public Affairs 204. A related form of argument relies on the ‘self
realization’ value, which includes both ‘autonomy’ in
the
sense of allowing people to make free decisions and also the individual’s
capacity for self-development. See Thomas I Emerson,
‘Toward a General
Theory of the First Amendment’ 72 Yale Law Journal 877, 819 (1963);
Martin Redish, ‘The Value of Free Speech’ (1982) University of
Pennsylvania Law Review
591.
[97] Owen
Fiss ‘Free Speech and Social Structure’ (1986) 71 Iowa Law Review
1405, 1409-10. See also Williams, above n
1.
[98] Owen M.
Fiss, The Irony of Free Speech (1996); Cass R. Sunstein, Democracy and
the Problem of Free Speech
(1993).
[99]
See for example, Post, above n 94 and accompanying text.
[100] Alexander
Meiklejohn, Political Freedom: The Constitutional Powers of the People,
26 (1948).
[101]
That is, the capacity of some to dominate public debate to the exclusion of
others. A particular concern is the domination of political
debate by wealthy
political donors. Fiss, above n 98, 8-9, 16; see also below nn 135-37 and
accompanying text. Fiss also shows a
special concern for the way in which hate
speech and pornography may ‘silence’ other speakers by
‘diminish[ing]
the victims’ sense of worth, thus impeding their full
participation in many of the activities of civil society, including public
debate.’ Ibid, 16, though he is less comfortable with regulation of
these forms of speech. Ibid, 25. See also, Sunstein, above n 98, 35.
Sunstein also suggests that these arguments would support ‘requirements of
public
interest programming on television, rights of reply for dissenting views,
controls on the power of advertisers to influence programming
content, and
limitations on advertising during children’s programming’
Ibid. Some advocates for the regulation of hate speech and pornography
argue that it addresses the ‘silencing’ of the victims
of these
forms of speech. Charles Lawrence, ‘If He Hollers Let Him Go Regulating
Racist Speech on Campus’ 1990 Duke Law Journal 431; Catherine
MacKinnon, Feminism Unmodified (1987) 209; Rae Langton ‘Speech Acts
and Unspeakable Acts’, (1993) 22 Philosophy and Public Affairs
293.
[102] Fiss,
above n 98,
18.
[103] New
York Times v Sullivan [1964] USSC 40; 376 US 254, 270 (1964); Abrams v United States,
[1919] USSC 206; 250 US 616, 630 (1919) (Holmes
J).
[104]
Buckley v Valeo [1976] USSC 24; 424 US 1, 48-49 (1976) ‘[T]he concept that
government may restrict the speech of some elements of our society in order to
enhance the
relative voice of others is wholly foreign to the First Amendment,
which was designed to secure the widest possible dissemination
of information
from diverse and antagonistic sources, and to assure unfettered interchange of
ideas.’ (citations
omitted).
[105]
See Schauer, above n 7, 45-46. This idea is found in the judgments of Judge
Learned Hand, see United States v Associated Press, 52 F Supp 362, 372:
‘The First Amendment ... ‘presupposes that right conclusions are
more likely to be gathered out of a multitude
of tongues, than through any kind
of authoritative
selection.’
[106]
Scanlon, supra n 94. The argument is that an autonomous person is one who makes
independent choices about her actions and beliefs
in the face of competing
reasons. Freedom of speech promotes autonomy by providing the individual with
the information on which to
make these choices. Therefore, respect for autonomy
precludes state from regulating speech because of its capacity to persuade an
individual to have a certain belief or because of its capacity to cause a person
to take action by persuading him that the action
is
worthy.
[107]
Ibid,
170.
[108]
Ibid.
[109]
Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7. See, also McGinty [1996] HCA 48; (1996)
186 CLR 140, 231-32 (McHugh J): ‘Underlying or overarching doctrines may
explain or illuminate the meaning of the text or structure of
the Constitution
but such doctrines are not independent sources of the powers, authorities,
immunities and obligations conferred by the Constitution. Top-down reasoning is
not a legitimate method of interpreting the Constitution ... it is not
legitimate to construe the Constitution by reference to political principles or
theories that are not anchored in the text of the Constitution or necessary
implications from its structure.’ (footnote
omitted).
[110]
Post, above n
94.
[111] Post,
‘Meiklejohn’s Mistake’ above n 94, Robert Post,
‘Equality and Autonomy in First Amendment Jurisprudence’
(1997) 95
Michigan Law Review 1517. A more radical version of the argument, on
which I do not seek to rely is put by Martin Redish. Whereas Post sees autonomy
as an
aspect of self-government, Redish sees self-government as an aspect of
‘self-realization’, a value that encompasses both
autonomy in the
sense discussed above (the individual’s freedom to make choices about her
acts and beliefs) and the freedom
to develop the individual’s ‘human
faculties’. Redish, above n 96, 602-03 Redish argues that the attraction
of
democracy lies in the control it gives to individuals over their own
destinies. He argues ‘if one does not accept the morality
of such a
proposition, why bother to select a democratic system in the first place?’
Ibid. Therefore the democratic government
rationale for freedom of speech must
be understood as a manifestation of a more general rationale for freedom of
speech: the ‘self
realization’
value.
[112]
Post, ‘Meiklejohn’s Mistake’, above n 94,
1116.
[113]
Ibid,
1116.
[114]
Ibid, 1128: ‘Public discourse merits unique constitutional
protection because it is the process through which the democratic
‘self,’
the agent of self-government, is itself constituted through
the reconciliation of individual and collective autonomy. Constitutional
solicitude for public discourse, therefore, presupposes that those participating
in public discourse are free and
autonomy.’
[115]
Post, ‘Equality and Autonomy’, above n 111, 1524 –
26.
[116]
Ibid,
1524.
[117]
Post, ‘Meiklejohn’s Mistake’ above n 94,
1117-1118.
[118]
Meiklejohn’s argument that is that government’s role is like that of
a moderator of a town meeting, controlling debate
to ensure an orderly
discussion in which all points of view are presented. See Alexander Meiklejohn,
Political Freedom: The Constitutional Powers, above n 100.
[119] Post,
‘Meiklejohn’s Mistake’, above n 94, 1118 (footnote
omitted).
[120]
See Post, above n 92 at 1131-32 'The explosive expansion of the regulatory state
during the 20th centry .. has been fueled by acceptance
and application of the insights of social science ... We do not regard these
government controls
as fundamentally incompatible with the premises of
democratic freedom because we conceive of them to have been freely adopted by
the citizens of a democratic state. Analogous managerial controls over public
discourse, however, cannot be conceptualized as democratically
legitimate in the
same way, for they displace the very processes of collective self-determination.
[121] See above
n 109.
[122] See
above n 96.
[123]
See above nn 15-16 and accompanying
text.
[124] As I
have argued elsewhere, the text and structure interpretive method does little to
constrain the interpretation of the freedom
of political communication. Stone
above n 23. See also Jeremy Kirk, 'Constitutional Implications (II): Doctrines
of Equality and
Democracy' (2001) 25 Melbourne University Law Review 25,
50.
[125] See
Post, above n 92,
1115.’
[126]
See above n 17 and accompanying
text.
[127] See
above n
107.
[128]
Indeed, I have argued elsewhere that the High Court should, where possible,
postpone developing the theoretical underpinnings of
the freedom of political
communication because of the ambitious and difficult nature of the task. See,
Adrienne Stone, ‘The
Freedom of Political Communication, the Constitution
and the Common Law’ (1998) 26 Federal Law Review
219.
[129]
Post, ‘Meiklejohn’s Mistake’, above n 92, 1123-24 'Many who
practice empirical political science would not doubt
object to the
identification of democracy with the value of autonomous self-government. But
within the world of [American] constitutional law this identification
stands virtually unchallenged' (emphasis
added).
[130]
Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106, 181 ‘the legal
foundation of the Australian Constitution is an exercise of sovereign power by
the Imperial Parliament’. As noted by Michael Waite there is a possibility
that this view
has been revived in Sue v Hill [1999] HCA 30 para 70 where
Chief Justice Gleeson and Justices Gummow and Hayne refer to the Australian
sovereign as ‘a constitutional monarch.’
See Michael Waite,
‘The Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution
Revisited’[2001] FedLawRw 3; , (2001) 29 Federal Law Review 57. The contrary
view is that, at least since the passage of the Australia Act 1986 (UK)
the Australian Constitution derives it authority from the Australian people (the
ratification of the Constitution by the people of the Australian states and it
continued acceptance by the Australian Parliament). Australian Capital
Television [1992] HCA 45; (1992) 177 CLR 106, 138(Mason CJ): ‘[T]he Australia
Act 1986 (UK) marked the end of legal sovereignty of the Imperial Parliament
and recognized that ultimate sovereignty resided in the Australian
people.’ See also, Nationwide News v Wills (1992) 177 CLR 211, 172
(Deane J); Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106, 138 (McHugh
J). For an excellent discussion (and thorough review of judicial statements on
this issue) see George Winterton, ‘Popular
Sovereignty and Constitutional
Continuity’ [1998] FedLawRw 1; (1998) 26 Federal Law Review 1. Professor Winterton
reconciles the two positions as follows, ‘The continuing legal authority
of our Constitution derives from its original enactment at Westminster and
subsequent retention (with amendments) by those empowered to amend it, which
includes the Australian electors. But the latter derived their legal authority
from the former.’ Winterton ibid,
7.
[131] Compare
these views to conventional understandings of the United States Constitution. In
New York v Sullivan [1964] USSC 40; 376 US 254, 274, 275, the Court discusses James
Madison’s view that ‘[t]he American form of government was
‘altogether different’
from the British form, under which the Crown
was sovereign and the people were subjects’ and his view that ‘[i]f
we advert
to the nature of Republican Government, we shall find that the
censorial power is in the people over the Government, and not in the
Government
over the people.’ Importantly, Madison linked these differences to
individual freedoms, ‘[i]s it not natural
and necessary, under such
different circumstances ... that a different degree of freedom in the use of the
press should be contemplated?’
(footnotes
omitted)
[132] In
Australia, the growing acceptance of notions of popular sovereignty was employed
in favour of arguments for implied constitutional
rights. Professor Saunders
notes this association in Cheryl Saunders, "The Mason Court in Context", in C
Saunders (ed), Courts of
Final Jurisdiction: The Mason Court in Australia (1996)
2, 4. Some commentators have argued that questions of sovereignty have nothing
to say about the existence, or otherwise, of constitutional implications
protecting individual rights. See Winterton, above n 131,
12: ‘The rights
and freedoms of citizens are determined by the sovereign’s handiwork, the
Constitution, wherein the people may choose to retain a multitude of rights, as
in the United States, or relatively few or even none, by adopting
wholly or
partially the principle of parliamentary supremacy.’ The argument I am
making suggests something slightly different.
I am suggesting that question of
sovereignty help interpret the existing right of the freedom of political
communication by defining
the nature of the institutions of representative and
responsible government it serves.
[133] See above
n 129.
[134]
Remembering that, as discussed in Part I, that 'political communication' covers
communication about a broad range of
matters.
[135]
Above nn
99-101.
[136] See
Fiss, above n
98.
[137] On this
view, other kinds of arguments might nonetheless allow for the regulation of
speech. For example, Post recognizes that regulation
of commercial speech does
not raise this problem. See, Robert C Post, ‘Reconciling Theory and
Doctrine in First Amendment Jurisprudence’
(2000) 88 California Law
Review 2353, 2373.
[138] See above
n 120 and accompanying
text.
[139] Thus,
his argument relies upon an ‘ascriptive’ sense of autonomy, the idea
that autonomy is not a quality that we are
empirically judged to have, but a
‘moral right to personal sovereignty’. See, Richard H. Fallon, Jr.
‘Two Senses
of Autonomy’ (1994) 46 Stanford Law Review 875,
877. Professor Fallon distinguishes between this ‘ascriptive’ sense
and a ‘descriptive’ sense of autonomy:
‘In one fundamental
usage, autonomy is largely a descriptive concept which refers to people’s
actual condition and signifies
the extent to which they are meaningfully
‘self-governed’ in a universe shaped by causal forces ... Employed
as an ascriptive
concept, autonomy represents the purported metaphysical
foundation of people’s capacity and also their right to make and act
on
their own decisions ... Ascriptive autonomy – the autonomy that we ascribe
to ourselves and others as the foundation of
a right to make self-regarding
decisions – is a moral entailment of personhood.’ Ibid 877,
878.
[140] I have
not discussed regulation of pornography and hate speech (see above n 101)
because it is seems unlikely that the Australian
courts would regard these as
political communication.
[141] [1992] HCA 45; (1992) 177
CLR 106. The impugned legislation in that case limited electronic advertising
during election periods. It was directed at reducing the disproportionate
influence of wealthy donors to political parties. As the Commonwealth argued in
that case: ‘[T]he evident and principal purpose
of [the law] is to
safeguard the integrity of the political system by reducing, if not eliminating,
pressure on political parties
and candidates to raise substantial sums of money
in order to engage in political campaigning on television and radio, a pressure
which renders them vulnerable to corruption and to undue influence by those who
donate to political campaign funds.’ Australian Capital Television
[1992] HCA 45; (1992) 177 CLR 106,
129.
[142] The
law at issue in Australian Capital Television was held invalid because
the way in which it distributed free access to the electronic media during
election periods was considered
likely to favour established political
parties. Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106, 145 (Mason J),
172 (Deane and Toohey JJ), 221 (Gaudron J), 237 (McHugh
J).
[143]
Australian Capital Television (1992) 177 CLR 104, 169 (Deane and Toohey
JJ)(emphasis added): ‘A law prohibiting or restricting political
communications by reference to their
character as such will be consistent with
the prima facie scope of the implication ... [if] it is justified as being in
the public
interest for the reason that the prohibitions and restrictions on
political communication which it imposes are ... conducive to the overall
availability of the effective means of such communication’.
Significantly, Justices Deane and Toohey cite Red Lion Broad Co v FCC,
[1969] USSC 141; 395 US 367 (1969) (upholding federal regulations of the broadcast media), a
decision that Robert Post describes as ‘[t]he one notable
exception to
[the First Amendment’s] commitment [to individual rights] ... these
regulations ... were designed to promote a
balanced and well-ordered national
dialogue on public issues’. Post ‘Reconciling Theory and Doctrine in
First Amendment
Jurisprudence’, above n 134, 2370.
[144] One
further possibility that can be fairly readily excluded is the sense that
litigants may only assert a violation of their own,
and not someone
else’s, constitutional rights. See Broadrick v Oklahoma [1973] USSC 166; 413 US 601,
610-11 (emphasis added): ‘[A] person to whom a statute may
constitutionally be applied will not be heard to challenge that
statute on the
ground that it may conceivably be applied unconstitutionally to others, in other
situations not before the Court.
A closely related principal is that
constitutional rights are personal and may not be asserted
vicariously.’ See generally, Matthew Adler, ‘Rights Against
Rules’ (1998) 97 Michigan Law Review 1, 39 n 147 and cases there
cited.) There is no suggestion in any judgment considered here that casts doubt
on the corresponding requirement
in Australian constitutional law.
[145] Thus a
right like the right against unreasonable searches and seizures, or the
privilege against self-incrimination (found in the
Fourth and Fifth Amendments
to the Constitution of the United States) would not count as personal rights.
Although these rights are directed to the protection of individuals, they
are
negative rights that protect only against the action of government.
[146] [1997] HCA 25; (1997) 189
CLR 520, 560. See also Levy [1997] HCA 31; (1997) 189 CLR 579, 622 (McHugh J);
Theophanous [1994] HCA 46; (1994) 182 CLR 104, 146-48 (Brennan J); 168 (Deane J);
Cunliffe v Commonwealth (1992) 182 CLR 372, 327 (Brennan J);
Australian Capital Television (1992) 177 CLR 104, 150 (Brennan J). For
similar statements in the literature on the freedom of political communication,
see Anne Twomey ‘Expansion
or Contraction? A Comment’ [1998] AdelLawRw 12; (1998) 20
Adelaide Law Review 147, 150; Richard Jolly, ‘The Implied Freedom
of Political Communication and Disclosure of Government Information’
[2000] FedLawRw 2; (2000) 28 Federal Law Review 41, 43, 51; Williams, above n 1,
62.
[147] [1994] HCA 44; (1994)
182 CLR 272,
326.
[148]
Theophanous [1994] HCA 46; (1994) 182 CLR 104, 148; Cunliffe v Commonwealth
[1994] HCA 44; (1994) 182 CLR 272, 326.
[149] McClure
v Australian Electoral Commission [1999] HCA 31; (1999) 163 ALR 734, 741 (Hayne J):
‘the freedom of communication implied in the Constitution is not an
obligation to publicise. The freedom is a freedom from governmental
action; it is not a right to require others to provide a means of
communication.’
[150]
The terminology of ‘vertical’ and ‘horizontal’ rights is
used in the context of European and South African
Rights. See, Andrew Clapham,
Human Rights in the Private Sphere (1993), Murray Hunt ‘The
‘Horizontal Effect’ of the Human Rights Act’ [1998] Public
Law 423, Stuart Woolman ‘Chapter 10: Application’ in Matthew
Chaskalson et al (eds) Constitutional Law of South Africa (1996). Under a
‘vertical’ approach to rights ‘human rights law is concerned
only with the relationship between the state and the individual’
under a horizontal approach rights ‘govern also relationships
between private individuals and bodies’. Hunt ibid, 423.
[151] The
reasons for this classification are not, however, found in conventional methods
of interpretation. The text of the Constitution does not indicate whether the
freedom of political communication is positive or negative. Compare the First
Amendment, which begins
‘Congress shall make no law ...’ or its
nearest equivalent in the Australian Constitution, s 116, which begins
‘The Commonwealth shall not make any law for the establishment of religion
...’ As for structural implication
from the text, (i.e., by the notion of
what is ‘logically or practically necessary’ derived from the text)
the argument
could go either way. The freedom exists to protect institutions of
representative and responsible government and, if it could be
shown that
government action was necessary to protect these institutions, the logic of the
structural implication would entail that
government action is required. Further,
historical arguments, often deployed in support of the conclusion that American
constitutional
rights are generally negative (see, DeShaney v Winnebago
County Department of Social Services [1989] USSC 28; 489 US 189, 196 (1989), cf Michael J
Gerhardt ‘The Ripple Effects of Slaughter-House: A Critique of a Negative
Rights View of the Constitution’ (1990) Vanderbilt Law Review 409)
are also unhelpful in this case because the historical basis for the freedom is
itself rather weak. The freedom of political communication
is usually justified
as an implication from the text that can be drawn from the text without
reference to original understanding.
See, Stephen Donaghue, ‘The Clamour
of Silent Constitutional Principles’[1996] FedLawRw 5; , (1996) 24 Federal Law Review
133. For an originalist critique, see Jeffrey Goldsworthy,
‘Constitutional Implications and Freedom of Political Speech: a reply
to
Stephen Donaghue’ [1997] MonashULawRw 22; (1997) 23 Monash University Law Review
362.
[152]
Negative rights can be seen as a manifestation of a preference for a negative
concept of liberty. That is, a concept of liberty as
freedom from interference.
See generally, Susan Bandes, ‘The Negative Constitution: A Critique’
(1990) University of Michigan Law Review 2271, 2313-16. A famous argument
for ‘negative liberty’ is found in Isaiah Berlin ‘Two Concepts
of Liberty’
in Four Essays on Liberty (1969). Berlin’s feared
that a ‘positive’ conception of liberty that would allow the state
to intervene to achieve
whatever that positive conception entailed and may then
lead to totalitarianism.
[153] Bandes,
above n 148, 2317-23. See also, below n 151. Common law understandings about the
nature of rights may be particularly significant
for the interpretation of the
Australian Constitution, given the close relationship between common law
principles and the Constitution. See below nn 201-03 and accompanying
text.
[154]
Geoffrey R Stone, Louis M Seidman, Cass R Sunstein, Mark V Tushnet,
Constitutional Law 1693 (3rd ed. 1996):
‘[I]t is a commonplace that the commands of the Constitution are directed
to governmental entitles, not to private parties’; James v
Commonwealth [1939] HCA 9; (1939) 62 CLR 339, 362: ‘Prima facie a constitution is
concerned with the powers and functions of government and the restraints upon
their exercise.’
Though the rights protected by the Constitution of
Ireland appear to be an exception. See Hunt above n 146,
428.
[155]
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, 501 (Deane J). See
also, Archie v City of Racine 847 F. 2d 1211, 1213 (1988) (Easterbrook
J): ‘it is possible to restate most actions as corresponding inactions wit
the same
effect and to show that inaction may have the same effects as a
forbidden action.’ The law of negligence provides demonstrates
the
difficulty of this distinction because, just as constitutional rights are said
to confer no obligations on the government to
act, the law of negligence does
not generally recognize liability for an omission unless that omission is taken
within the course
of some larger activity. See Francis Trindade and Peter Cane,
The Law of Torts in Australia (3rd ed, 1999)
400.
[156]
Laurence Tribe, ‘The Abortion Funding Conundrum: Inalienable Rights,
Affirmative Duties, and the Dilemma of Dependence (1985) 99 Harvard Law
Review 330, 331: ‘[W]hat appears at first to be merely a governmental
'omission' - for example, failure to fund therapeutic abortions
for poor women
accompanied by funding of childbirth procedures for the same women - might be
regarded ... as a deliberate, 'active'
choice by government to discourage
exercise of a negative individual right.’ See also, Seth F. Kreimer,
‘Allocational
Sanctions: The Problem of Negative Rights in a Positive
State’, (1984) 132 University of Pennsylvania Law Review 1293,
1295.
[157] See,
Tribe, above n 77, 1689, discussing controversial state action cases: ‘In
these cases it is not so much the basic government
action to which litigants
object ... Rather, the litigants objecting to the acts of private parties,
sought to portray as support
or tacit approval what might be characterized as
mere governmental acquiescence in certain
acts’.
[158]
DeShaney v Winnebago County Department of Social Services [1989] USSC 28; 489 US 189, 200
(1989). See, Estelle v Gamble [1976] USSC 205; 429 US 97 (finding that the
8th Amendment requires the state to provide adequate
medical care to incarcerated prisoners); Youngsberg v Romeo 457 US 397
(1982) (14th Amendment due process requirement obliges
the State the ensure the reasonable safety of involuntarily committed mental
patients).
[159]
Bandes above n 148, 2284-84, Kreimer, above n 152; Tribe above n
152.
[160] See
DeShaney v Winnebago County Department of Social Services [1989] USSC 28; 489 US 189, 198
(1989): ‘within certain limited circumstances the Constitution imposes
upon the State affirmative duties of care and protection with respect to
particular individuals.’ For examples concerning
the First
Amendment’s free speech guarantee see, Schneider v State, [1939] USSC 134; 308 US
147 (1939) (city must expend resources to clean up litter rather than deny
leafletters access to a public forum); Downie v Powers, [1951] USCA10 189; 193 F 2d 760,
763-4 (1951) (police have duty to protect speakers from mob action).
[161] See below
n 163.
[162]
Brentwood v Tennessee [2001] USSC 8; 121 S Ct 924 (2000) (finding that a
statewide association, incorporated to regulate interscholastic athletic
competition among public and private
secondary schools, engaged in state action
when it enforced a rule against a member school because of the pervasive
entwinement of
public officials in the association’s
activities).
[163]
Nearly all of the individual rights guaranteed in the United States Constitution
contain a ‘state action’ requirement. That is, they can only be
violated by some action of government. Notable exceptions
are the Thirteenth
Amendment’s prohibition on slavery and the constitutional right to travel,
which can be infringed by government
or private action. Civil Rights Cases
[1883] USSC 182; 109 US 3, 20 (1883); Griffin v Breckenridge, [1971] USSC 118; 403 US 88, 105 (1971);
Bray v Alexandria Women’s Health Clinic[1993] USSC 4; , 506 US 263, 297 (1993).
[164] Burton
v Wilmington Parking Authority 365 US 716, 724 (1961) finding that a coffee
shop located in a government parking building could not operate in racially
discriminate manner.
The ‘symbiotic relationship’ of the private
coffee shop and the government parking authority ‘indicate[s] that
degree
of state participation and involvement in discriminatory action which it was the
design of the Fourteenth Amendment [equal
protection guarantee] to
condemn’. Compare Moose Lodge No 107 v Irvis [1972] USSC 134; 407 US 163 (1972)
rejecting a claim that a private club’s racial discrimination violated the
14th Amendment because the club held a state liquor
license.
[165]
Brentwood v Tennessee [2001] USSC 8; 121 S Ct 924, [26 – 27]; Reitman v
Mulkey [1967] USSC 139; 387 US 369 (1961) finding a California state initiative allowing
persons to sell, lease or rent real property in their ‘absolute
discretion’
and thus not subject to state anti-discrimination laws
effectively authorized racial discrimination. Compare Jackson v Metropolitan
Edison [1974] USSC 219; 419 US 345, 357 (1974) rejecting an argument that the state
authorized or approved an electricity utility’s termination of service
policy
even though the utility was subject to state regulation: ‘Approval
by a state utility commission of such a request from a regulated
utility, where
the commission has not put its own weight on the side of the proposed practice
by ordering it, does not transmute
a practice initiated by the utility and
approved by the commission into ‘state action.’.’ Flagg
Bros v Brooks [1978] USSC 75; 436 US 149, 164 (1978) rejecting an argument that the proposed
sale was attributable to the state because the state had authorized or
encouraged
the action by enacting the Uniform Commercial Code. The state’s
role was ‘mere acquiescence’.
[166] See
Marsh v Alabama [1946] USSC 7; 326 US 501, 506 (1946) (holding that the owners of a
company town could not abridge the First Amendment rights of residents:
‘Since these
facilities are built and operated primarily to benefit the
public and since their operation is essentially a public function, it
is subject
to state regulation.’); Evans v Newton [1966] USSC 2; 382 US 296, 301 (1966)
(finding that a park created by trust was subject to the
14th Amendment could not be operated on a racially
restrictive basis: ‘The service rendered even by a private park of this
character
is municipal in nature.’); but see, Hudgens v NLRB, [1976] USSC 30; 424
US 507 (1976) (upholding the right of the owners of a private shopping centre to
exclude union picketers); Jackson v Metropolitan Edison Co [1974] USSC 219; 419 US 345,
352 (1974) (limiting a finding of state action to ‘the exercise by private
entity of powers traditionally exclusively reserved
to the state.’);
Flagg Bros Inc v Brook [1978] USSC 75; 436 US 149, 160 (1978) (rejecting the argument
that a bailor’s propose sale of goods pursuant to a bailor’s lien
under the Uniform
Commercial Code constituted state action. ‘This system
of rights and remedies, recognizing the traditional place of private
arrangements in ordering relationships in the commercial world, can hardly be
said to have delegated to Flagg Brothers an exclusive
prerogative of the
sovereign.’)
[167]
Lange [1997] HCA 25; (1997) 189 CLR 520, 560 (emphasis
added).
[168]
[1994] HCA 46; (1994) 182 CLR 104. Though rather unconvincingly, the Court took the position
that it did not overrule Theophanous. Lange [1997] HCA 25; (1997) 189 CLR 520, 554.
[169]
Importantly, the Court does not simply reformulate the common law rule. Rather
it regards the new rule as a constitutional rule that
supplants the common law.
‘Because it derives from the Constitution the [newly recognized] defence
is available in all Australian jurisdictions, whether the law to be applied is
the common law or statute
law. Its availability will inevitably have the
consequence that the common law defence of qualified privilege will have little,
if
any, practical significance where publication occurs in the course of the
discussion of political matters.’ Theophanous [1994] HCA 46; (1994) 182 CLR 104,
140.
[170]
Theophanous [1994] HCA 46; (1994) 182 CLR 104,
153-54.
[171]
[1997] HCA 25; (1997) 189 CLR 520, 566. It is not clear why ‘executive power’ is
not included here. There is, however, clear authority for the application
of the
freedom to executive power. See text accompanying above n 141. See also, Levy
v Victoria [1997] HCA 31; (1997) 189 CLR 579 considering the application of the freedom to
Victorian
regulations.
[172]
[1997] HCA 25; (1997) 189 CLR 520, 554-56.
[173] [1997] HCA 25; (1997) 189
CLR 520, 564, citing McArthur v Williams (1936) 55 CLR 324,
347.
[174] To
some extent this was contemplated in the principal majority judgment in
Theophanous: ‘the implied freedom is one that shapes and controls
the common law. At the very least, development in the common law must
accord
with its content.’ [1994] HCA 46; (1994) 182 CLR 104, 126. However, as discussed above n
165, the majority went further than mere common law development, formulating a
constitutional
rule to apply to the common law.
[175] [1997] HCA 25; (1997) 189
CLR 520,
571.
[176]
John Pfeiffer Pty Limited v Rogerson, [2000] HCA 36; (2000) 172 ALR 625, 644, 661. See
also, Leslie Zines, The Common Law in Australia: Its Nature and
Constitutional Significance (CIPL, Law and Policy Paper, 1999)
26.
[177] See
below nn 184-85 and accompanying text.
[178] [1997] HCA 25; (1997) 189
CLR 520,
560.
[179]
Theophanous [1994] HCA 46; (1994) 182 CLR 104, 146.
[180]
Theophanous [1994] HCA 46; (1994) 182 CLR 104,
146.
[181]
Theophanous [1994] HCA 46; (1994) 182 CLR 104, 146 (emphasis
added).
[182]
Theophanous [1994] HCA 46; (1994) 182 CLR 104,
148-49.
[183]
Theophanous [1994] HCA 46; (1994) 182 CLR 104,
148-49.
[184]
Remembering that in Australia the federal courts are not subject to the
restrictions that prevent federal courts in the United States
from deciding
matters of common law. See below n 196 and accompanying text..
[185] Courts in
the Northern Territory and the Australian Capital Territory ultimately derive
their authority from Commonwealth legislation
passed under s 122 of the
Constitution that confers legislative power on the territories. It is not
necessary to consider here whether the freedom of political communication
therefore directly qualifies the power that self-governing territories can
confer on territory
courts.
[186] See
Lange [1997] HCA 25; (1997) 189 CLR 520, 566-67. See also, Geoffrey Kennett ‘The
Freedom Ride: Where to Now?’ (1998) 9 Public Law Review 111, 117.
It is plausible to argue that the Constitution is concerned with governmental
powers more generally but this merely makes my point. The uncontroversial
proposition that the Constitution is concerned with the allocation and control
of government power does not necessarily bring with it the conclusion
that the Constitution does not apply to the common law. That conclusion depends
entirely on how the common law is conceived and, as shown there is a strong
argument, when courts enforce it, the common law should be seen as an exercise
of government power in much the same way as legislative
and executive
action.
[187] See
for example, Supreme Court Act 1970 (NSW) s 23: ‘The Court shall
have all jurisdiction which may be necessary for the administration of justice
in New South Wales’;
See also, Supreme Court Act 1933 (ACT) s 23;
Supreme Court Act (NT) s 14; Supreme Court Act 1995 (Qld) s 199,
200; Supreme Court Act 1935 (SA) s 17; Supreme Court Civil Procedure Act
1932 (Tas) s 6; Constitution Act 1975 (Vic) s 85; Supreme Court Act
1986 (Vic) s 10; Supreme Court Act 1935 (WA)
s16.
[188] [1994] HCA 46; (1994)
182 CLR 104,
153.
[189] [1994] HCA 46; (1994)
182 CLR 104,
153.
[190] See
also Theophanous [1994] HCA 46; (1994) 182 CLR 104, 150 (Brennan J): ‘if it be
implicit in the system that the people of the Commonwealth should be able to
form and to exercise
political judgments, it is implicit that government should
not unnecessarily restrict their ability to do so ... Thus the powers
of
government are limited’ (emphasis
added).
[191] Sir
Richard Buxton has made a similar argument with respect to the application of
the Human Rights Act 1998 (UK) (which incorporates much of the
European Convention on Human Rights in to English law) to the common law
applied in disputes between individuals. Sir Richard Buxton argues that the
European Convention
on Human Rights and, therefore, the incorporation of it by
the Human Rights Act creates rights only against governments (including a
public authorities) and that as a result, the Human Rights Act has no
effect on the common law. See, Sir Richard Buxton, ‘The Human Rights Act
and Private Law’ (2000) 116 Law Quarterly Review 48,
59.
[192] 367 US
246 (1964).
[193]
367 US 254, 265 (1964)(emphasis
added).
[194]
This point was made as long ago as 1883, see Civil Rights Cases [1883] USSC 182; 109 U.S.
3, 26 (1883): ‘An individual cannot deprive a man of his right[s] ... he
may by force or fraud, interfere with the enjoyment
of the right in a particular
case; [but] unless protected in these wrongful acts by some shield of State law
or state authority,
he cannot destroy or injure the
right.’
[195]
Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd
(1986) 2 SCR 573, 600-01. See Brian Slattery, ‘The Charter’s
Relevance to Private Litigation: Does Dolphin Deliver?’ (1987)
32 McGill Law Journal
905.
[196]
Dolphin Delivery (1986) 2 SCR 573, 600-01.
[197] See
Slattery, above n 191, 918-19.
[198]
Ibid,
919.
[199]
Lange [1997] HCA 25; (1997) 189 CLR 520,
564-65.
[200] As
a consequence, federal courts have no general power to develop the common law
Erie RR v Tompkins [1938] USSC 94; 304 US 64
(1938).
[201] The
incorporation doctrine, depends on an elaborate interpretation of the Fourteenth
Amendment ‘due process’ requirement.
The Fourteenth Amendment
requires that ‘No State shall ... deprive any person of life, liberty or
property, without due process
of law’. Although the Supreme Court resisted
the argument that the requirement to act with ‘due process of law’
meant that the states were bound by the first ten amendments (the Bill of
Rights) in its entirety, it has allowed ‘selective
incorporation’.
That is, it has recognized on a piecemeal or case-by-case basis that ‘due
process’ requires adherence
to Bill of Rights requirements. The cumulative
effect of this is that most of the Bill of Rights now applies to states and,
indeed,
the notion of ‘due process’ is even broader. See Tribe,
above n 77, 772-74.
[202] It could
also be that the High Court is placing some emphasis on the words ‘any
law’ in the Fourteenth Amendment, words
that it quotes. Lange
[1997] HCA 25; (1997) 189 CLR 520, 663. (The Amendment reads, ‘[n]o State shall make or
enforce any law which shall abridge the privileges and immunities of
citizenship.’) Perhaps the argument is that these words explain why the
rights of the American Bill of Rights apply to the
common law. If this is the
argument two answers can be made. The first is technical. As a matter of
American constitutional doctrine,
the incorporation of the Bill of Rights
against the states is an interpretation of the ‘due process’ clause
(which does
not include those words) not the ‘privileges and
immunities’ clause. See Tribe above n 77, 772. Second, and more
importantly,
that explanation is not consistent with the reasoning in cases like
New York Times. It is clear from these cases that the Court applies the
Constitution to the common law not in response to the text of the Constitution
but because it regards judicial enforcement of the common law as a ‘form
of ... state power’. See above nn 189 and accompanying
text.
[203] See above
Part III B
(2).
[204] The
High Court’s position that the common law and the Constitution form
‘one system of jurisprudence’ in which the common law must conform
to the Constitution is drawn from Dixon’s essays. See, ‘Sources of
Legal Authority’ in Jesting Pilate (1965) 198. See also, ‘The
Law and the Constitution’; ‘The Common Law as an Ultimate
Constitutional Foundation’ in Jesting Pilate (1965) 38,
203.
[205] [1951] HCA 5; (1951)
83 CLR 1. See generally, Waite above n
132.
[206] See
Theo Varvaressos ‘Lange v The Australian Broadcasting Corporation:
A Case Study of the Interaction of the Constitution and the Common Law’,
Honours Thesis, Faculty of Law, Australian National University (1998) 16, who
completes the argument,
explaining that consistently with Dixon’s view the
Constitution ordinarily prevails over the common law just as any statute
prevails over inconsistent rules of the common
law.
[207] Waite,
above n 132
[208]
See above n
185.
[209]
Slattery makes the same point with respect to the Canadian position requiring
the Court to develop the common law consistently with
fundamental constitutional
values: ‘The problem is that any such judicial role seems inconsistent
with the premise that the
Charter does not extend to private disputes
governed by the common law ... If the Courts ‘ought’ to develop the
common law in
the way suggested, this can only mean that they have some sort of
duty to do so. This duty must stem from the Constitution itself, for it is
difficult to see where else it might come from.’ Slattery, above n 191,
920-21.
[210] On
the advantages of building upon an established body of law rather than inventing
a new ‘free standing’ constitutional
doctrine, see Adrienne Stone,
‘The Freedom of Political Communication, the Constitution and the Common
Law’ (1998) 26 Federal Law Review
219.
[211]
See above n
162.
[212] In one
influential account, it was described as ‘little more than a name for a
contention that has failed to make any lasting
place for itself as a decisional
ground that has failed of intellectual clarification’; Charles L. Black Jr
‘Foreword:
‘State Action,’ Equal Protection and California's
Proposition 14.’ (1967) 81 Harvard Law Review 69, 95. See
also, Reitman v. Mulkey, [1967] USSC 139; 387 US 369, 378 (1976): ‘This Court has
never attempted the ‘impossible task’ of formulating an infallible
test for determining
whether the State ‘in any of its
manifestations’ has become significantly involved in private
discriminations. ‘Only
by sifting facts and weighing circumstances’
on a case-by-case basis can a ‘nonobvious involvement of the State in
private
conduct be attributed its true significance.’ Burton v.
Wilmington Parking Authority, [1961] USSC 58; 365 U.S. 715, 722
(1961).’
[213]
[1952] USSC 82; 344 US 1
(1948)
[214] [1952] USSC 82; 344
US 1, 19 (1948): The Court held: ‘We have no doubt that there has been
state action in these cases in the full and complete sense
of the phrase. The
undisputed facts disclose that petitioners were willing purchaser of properties
upon which they desired to establish
homes. The owners of the properties were
willing sellers ... it is clear that but for the active intervention of the
state courts,
supported by the full panoply of state power, petitioners would
have been free to occupy the properties in question without
restraint.’
[215]
Gerald Gunther and Kathleen Sullivan, Constitutional Law
(13th ed, 1997), 938. See also Herbert Wechsler,
‘Toward Neutral Principles of Constitutional Law’ (1959) 73
Harvard Law Review 1,
29-31.
[216] I
have adapted an illustration given by Professor Wechsler, ibid,
31.
[217] At
least where the private property is a private home, rather than a privately
owned area used by the public. See above n
162.
[218] Tribe,
above n 77, 1711: ‘the general proposition that common law is state action
- that is, that the state ‘acts’
when its courts create and enforce
common law rules - is hardly controversial.’ See also, Wechsler above n
211, 29. Despite
his criticism of Shelley, Wechsler acknowledges
nonetheless: ‘[t]hat the action of the court is action of the state ...
is, of course is entirely obvious.’
Ibid. For attempts to define
the limits of state action, see Louis Henkin ‘Shelley v. Kraemer:
Notes for a Revised Opinion’ 110 University of Pennsylvania Law Review
473, 481-487 (1962); Tribe, above n 77,
1700.
[219]
Laurence Tribe has suggested that Shelley could be explained on the basis
that ‘neutrality does not suffice in matters of racial segregation in
housing, or that the state’s
contract and property rules ... were not in
fact neutral in their enforcement of racial restraints on alienation while
treating many
other restrains as unenforceable.’ Tribe, above n 77, 1715
(footnote
omitted).
[220]
Lange was a unanimous judgment that followed a number of divided
decisions on the freedom of political communication and implications from
representative government generally (see Theophanous [1994] HCA 46; (1994) 182 CLR 104,
Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211, McGinty v
Western Australia [1996] HCA 48; (1996) 186 CLR 140) and required most justices to abandon
some aspect of their previously held opinion. Professor Winterton has written of
the case,
‘who could have predicted that five justices – Brennan CJ,
Dawson, McHugh, Toohey and Gaudron JJ – would abandon
previously held
views?’ Winterton, above n 131, 4 n
15.
[221] Stone,
above n 23.
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