[3] Const Prohibitions - (2) IMPLIED FREEDOM OF POLITICAL COMMUNICATION Flashcards
First step in determining whether there’s been a breach of IFPC?
determine whether the law is otherwise within legislative competence (construe provision) –>
Cth - must be under a head of power (characterise and interpret per Fairfax)
State law - assume valid as plenary power (Australia Acts)
What’s the source of the IFPC?
used to be from freestanding notion of representative gov in ACTV and Nationwide News
NOW
per Lange, implied from text and structure of Constitution, especially ss 7, 24
How does the HCA view the IPFC in terms of rights/immunities?
IFPC operates as a prohibition on laws, rendering them invalid (is not a personal immunity) per Lange (cf Theophaneous and US position)
Is the IFPC an absolute right?
No, has limits
Test for breach of IFPC from from Lange/Coleman as reinterpreted in McCloy (as the current test) and modified in Brown - Q1
(1) Does the law effectively burden the freedom in its terms, operation or effect?
(if answer is no - then law doesn’t exceed implied limitation - no need to enquire as to validity)
Test for breach of IFPC from from Lange/Coleman as reinterpreted in McCloy (as the current test) and modified in Brown - Q2
(2) If the answer to question 1 is yes
—>
is the purpose of the law legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative government? (This is known as ‘compatibility testing’.)
Test for breach of IFPC from from Lange/Coleman as reinterpreted in McCloy (as the current test) and modified in Brown - Q3
(3) If “yes” to question 2,
—>
is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the constitutionally prescribed system of representative and responsible government? (“Proportionality testing”)
If a provision is shown to breach the IPFC per the BRown test, what can happen?
Law will be invalid - 2 options
(1) can be read down (interpret in a way to keep it within requirements)
(2) Sever the invalid part
Why was Industrial RElations Act making it offence to use lanugage that would bring the IR Commission into disrepute invalid in Nationwide News v Wills (1992)?
Law held to be invalid as the phrase was not detailed enough (too broad of a restriction)
–> here took approach that source of this right came from the Constitution implying a system of representative democracy, (not being implied from the specific provisions of the Constitution itself)
In Lange v ABC (NZ dude suing 4 defamation) why was the defamation law (which found ABC was defamatory) valid?
Whilst the defamation laws burden communication they have a legitimate end (protecting reptuation), also reasonably appropriate and adapted ie, allows defence of truth, allows defence of qualified privilege for political commentary
Does the IFPC apply to protect non-verbal communication/symbolic communication?
Yes per Levy v Victoria.
In Levy v Victoria (1997) why was the law regarding entering restricted shooting area regarded valid and not impinging on IFPC?
Whilst law’s operation did burden his ability to communicate non-verbally;
Regulations were reasonably appropriate and adapted to serve the legitimate end i.e. public safety (trying to ensure that members of the public don’t enter the area whilst shots are being fired)
o Maintenance of public safety is certainly compatible with responsible and representative government
Mulholland v AEC - challenge to validity of laws requiring 500 members for political party + no overlap btw members rule –> why was this law valid?
(this case noted that a ballot paper could be seen as a political communication btw party and electors protected by IFPC)
- was appropriate for legitimate end compatible with representative/responsible gov because it was designed to assist voters casting vote accordingly w/o confusion
Coleman v Power (which amended Lange test), was about what?
challenge to conviction under law prohibiting insulting, threatening, abusive language in public –> conviction was set aside –> accepted that communications alleging corruption of police were protected by the implied right to freedom of political communication. They also accepted that political communication could include insults
What was the court split about in Monis v the Queen (offensive letters to families of soldiers killed in Afghanistan)
- they accpeted that law preventing use of postal service in a harrassing/offensive way had connection to IFPC (as communications were political), but divided on whether the law’s purpose was compatible with maintain system of gov and implied freedom that supports it. (some saw it as regulating civility of discourse by using postal service and that it wasn’t legitimate end to preventing serious offences under the act)
