6. IMPLIED FREEDOM OF POLITICAL COMMUNICATION

Question 1

What sections of the Const does the IFPC derive from and why?

Answer 1

• Section 7: “The Senate shall be composed of senators for each State, directly chosen by the people of the State”. (ch 1)
• Section 24: “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth”.

The implied freedom derives from these above sections because theyy require that fed electors have access to info relevant to their choice of candidate in HOR or senate or the referendum proposal (Langey)

Question 2

Order of cases in the history of the implied freedom and brief caption of what they did for the power

Answer 2

1. Nationwide News Pty Ltd v Wills (1992): Original basis for the implication, however flawed as to its source
2. Australian Capital Television Pty Ltd v The Commonwealth (1992); confirmed above position
3. Theophanous v Herald and Weekly Times (1994); prohibition operates as an immunity (this has been overruled)
4. Lange v ABC (1997); basis for modern test + Basis of the implication is the constitutional text and structure
5. Levy v Victoria (1997): Expressive conduct and symbolic speech are included in the freedom
6. Mulholland v Australian Electoral Commission (2004): Application of Langey
7. Coleman v Power (2004): first amendment to Lange test
8. Monis v The Queen (2013): Application of Langey & Coleman test
9. Unions NSW v NSW (2013); Application of Langey & Coleman test
10. McLoy (2013); structured approach
11. Brown (2017); HC reformulated part of the test in Mcloy to align it more closely with the langey test reformulated in Coleman
12. Preston v Avery

Question 3

What is the current Mcloy Brown test?

Answer 3

This test didn’t reject langey/coleman test, it reformulated it – it’s not a completely new test

1. Does the law effectively burden the freedom in its terms, operation or effect?
2. 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?
3. 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? That is:
   i. Is the law suitable? That is, does the law have a rational connection to the purpose of the provision?
   ii. Is the law necessary? That is, is there no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom?
   iii. Is the law adequate in the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom?

Question 4

What are examples of purposes considered legitimate by the HC?

Answer 4

Monis: purpose of protecting people from intrusion of seriously offensive material into their personal domain. The purpose was not merely to ensure the civility of discourse of users of the postal service. This purpose was compatible and therefore legitimate

Unions: The overall purpose of the EFED Act was “to regulate the acceptance and use of political donations in order to address the possibility of undue or corrupt influence being exerted”. That purpose was legitimate
o However, s 96D was invalid because did not nothing to promote that purpose and had no purpose other than to prohibit certain donations

Mcloy: Purposes of the three laws: to prevent “corruption and undue influence in the government of the State” ([33]), anciliary purpose to overcome “perceptions of corruption and undue influence” ([34]); and all three laws were aimed to “to level the playing field to ensure that all voices may be heard”

• Section 95A: the purpose of the law and the means employed to achieve that purpose preserve and enhance the system of representative government ([47]).  Purpose and means thus legit
• Section 96GA: “[p]roperty developers are sufficiently distinct to warrant specific regulation in light of the nature of their business activities and the nature of the public powers which they might seek to influence in their selfinterest” ([49],
• History/proof of prop dev gave large pol donations to parties in exchange for better laws to enable them to build units etc– plurality accepted it was okay to single out prop developers
• Section 96E: the law had an ‘anti-avoidance’ purpose (designed to stop people from getting around the other laws) and so its validity depended on the validity of ss 95A and 96GA ([22]).

Preston v Avery: “to protect the safety and wellbeing, physical and emotional, of persons accessing and leaving abortion clinics and to ensure that women may have unimpeded access to, and doctors may provide, terminations”

Levy: Public safety from hunting grounds/guns

Question 5

What are purposes deemed NOT legitimate by the HC?

Answer 5

Monis “the prevention of uses of postal or similar services which reasonable persons would regard as being, in all the circumstances, offensive”. This purpose was not legitimate

Monis (Hayne J): to prevent serious offence by “regulating the civility of discourse carried on by using a [postal or similar] service”. This purpose was not legitimate

Question 6

2. What constitutes “political communication”? ie, how broad is the concept? Can it be equated with speech in general?

Answer 6

a. It doesn’t protect private speech- It has to be somewhat public
d. Any conduct of politicians which would be defined as purely private, is generally of pol interest if it impinges on their duties as a member of the govt, senator, member of the house etc
f. The criterion is anything that might influence a person when they’re voting about who they’re going to vote for is pol com

** also covers symbolic, non-verbal communication

Question 7

3. What is the precise operation of the right? (ie is it a prohibition on laws which burden speech as opposed to an immunity to such laws?)

Answer 7

a. A prohibition in the Anglo-Australian sense Lange

b. It is NOT an immunity in the US sense

Question 8

4. How far does the right extend in terms of whether it covers federal, state, territory laws?

Answer 8

a. Not limited to federal issues, but includes State, local and international issues relating to public matters Lange

Question 9

5. Is there a there a temporal limitation, ie during election periods, or does it apply at all times?

Answer 9

a. There are no temporal limits- the right doesn’t exist just at election times- it applies at all times Lange

Question 10

7. Is the right absolute?

Answer 10

not an absolute right to pol com Lange

- apply Mcloy/Brown test to figure it out

Question 11

what is the scaffold for answering an IFPC question?

Answer 11

1. CONSTRUE THE PROVISION (QUERY IF YOU NEED TO DO THIS IN AN EXAM. YOU MAY BE ABLE TO GO STRAIGHT TO STEP 2).
   a. Ambiguous words? You will have to do this if it has a word like “offensive” (which split the court in Monis) or “insulting words” (which split the court 4:3 in coleman)
   b. Threshold issues? implied freedom applies to a state election (this is fairly settled in Unions) but important to keep it in mind in case a new threshold issue arises
   i. were the appellant’s statements sufficiently connected with federal politics and government to be covered by an implication drawn from the Commonwealth Constitution (Coleman)
   c. Law made under a relevant HOP?
   i. States: remember, states have plenary power under so they don’t need a HoP
2. APPLY THE MCCLOY/BROWN TEST.
   + reason by analogy - legit vs non-legit purposes
3. Remember the other relevant info

Question 12

Facts and holding of Nationwide News Pty Ltd v Wills (1992)

Answer 12

FACTS

• Provision of Industrial relos act made it an offence for a person to use words in writing or speech calculated to bring industrial relos commission in disrepute
• Prosecution for an article published by nationwide news – put integrity and independence of the commission into question
• the newspaper that was prosecuted attacked the const validity of the provision

HELD
Provision was invalid because it breached an IFPC in this case to make speech re the commission
- The reason was not so much that the law burdened some speech but that it burdened too much speech
- MAJ: They said if one examines the const as a whole it provides for rep govt and rep dem – needs to be protected through free pol com

Minority didn’t deal with implied right issue – minority held it was invalid on ground that it was not within the scope of implied incidental power of the arbitration power

Question 13

facts and holding of Australian Capital Television

Answer 13

FACTS
- free broadcasting time was granted to pol parties- 90% of free time given to parties already rep in the leg- this was bad for new and small parties – and no money provided to groups not standing for election eg enviro groups, union etc- they were precluded

HELD
Leg = wholly invalid on this basis – it burdened the rights of many groups
- - This judgement confirms that there is an implied freedom of pol com and this is based on the notion of rep dem- overarching principles

Question 14

facts and holding of 3. Theophanous v Herald and Weekly Times

Answer 14

FACTS

• theo = member of HOR – commenced proceedings in def on basis of articles published that criticised his view on immigration, said he had bias and conduct as chairman and called him an idiot
• the newspapers arg that they should be able to publish these things (they are immune) because he’s a public figure and there was political elements to the commentary (directed to his pol capacity) – therefore, pursuant to a freedom guaranteed by cth cons

HELD
law = valid - - publication fell into category of pol discussion because it questioned Ps suitability to hold office but in these circs there was an immunity/const defence from the laws of def
IFPC did not operate as a const prohibition that limited laws (not saying laws of def have to be accommodated) but rather whatever the laws of def are, given that this type of speech is protected by the implied freedom, the papers had an immunity

Question 15

facts and 7 key holdings of 4. Lange v ABC

Answer 15

FACTS
- David Lange, (former PM of New Zealand) sued the ABC in the Supreme Court of NSW for defamation in respect of matters published by the latter when he was a member of the New Zealand Parliament.

The defence relied upon by the ABC: the material which was claimed to be defamatory was published “pursuant to a freedom guaranteed by the Commonwealth Constitution to publish material … in the course of discussion of government and political matters. ”
- In addition it relied on the defence of qualified privilege in the defamation act

HELD

• the defence of qualified privilege in NSW (Defamation Act) did not unreasonably burden political communication. Ie, it was a sufficiently broad defence such as not to override the implied freedom
• Basis of the implication: constitutional text and structure - for s 7 and s 24 to work - need IFPC
• Rejection of the position in Theophanis that this was an immunity from laws - this is a prohibition
• There are no temporal limits- the right doesn’t exist just at election times-
• Very liberal and broad definition of “political communication” - it encapsulates anything that can be described as public affairs
• Not limited to federal issues, but includes State, local and international issues relating to public matters
• The test for determining whether a law infringes the constitutional implication of FOPC

Question 16

facts, holding and principle of 5. Levy v Victoria (1997)

Answer 16

FACTS:

• Levy was an animal rights activist.
• He was charged with summary offences under Victorian hunting season regulations.
• The regulations made it an offence for people who did not hold a valid game licence to enter into or upon any permitted hunting area during a specified period of time; during which time licenced hunters were allowed to shoot and kill ducks.
• Levy and his associates had entered into the prohibited area without a licence to conduce a protest
• They filmed what was going on (animals being killed etc)
• Levy args these regs are a breach of the implied freedom of pol com and therefore are invalid

HOLDING: act burdened IFPC but was valid because reasonably appropriate and adapted to achieve legit end (public safety)

PRINCIPLE: symbolic speech are protected by the IFPC

Question 17

6. Mulholland v Australian Electoral Commission (2004): Application of Langey

Answer 17

FACTS

• Pol parties have to be registered
• In order to be registered under the Commonwealth Electoral Act 1918 (Cth), a political party must have at least 500 members (“the 500 rule”).
• A party can only rely on a member for the purposes of this rule, if another party has not relied on the same person to reach 500 members (“the no overlap rule”)

HELD: unanimously - rejected all args= valid leg

Question 17

6. Mulholland v Australian Electoral Commission (2004): Application of Langey

Answer 17

FACTS

• Pol parties have to be registered
• In order to be registered under the Commonwealth Electoral Act 1918 (Cth), a political party must have at least 500 members (“the 500 rule”).
• A party can only rely on a member for the purposes of this rule, if another party has not relied on the same person to reach 500 members (“the no overlap rule”)

HELD: unanimously - rejected all args= valid leg

Question 17

6. Mulholland v Australian Electoral Commission (2004): Application of Langey

Answer 17

FACTS

• Pol parties have to be registered
• In order to be registered under the Commonwealth Electoral Act 1918 (Cth), a political party must have at least 500 members (“the 500 rule”).
• A party can only rely on a member for the purposes of this rule, if another party has not relied on the same person to reach 500 members (“the no overlap rule”)

HELD: unanimously - rejected all args= valid leg

Question 18

7. Coleman v Power (2004): first amendment to Lange test

Answer 18

FACTS

• • Appellate distributed pamphlets alleging corruption by police officers – kiss my ass you slimy, lying bastards
• Appellant arrested for obstructing police, and swearing in public
• Section 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld): “Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear … uses any threatening, abusive, or insulting words to any person … shall be liable to a penalty of $100 or to imprisonment for 6 months … .”

HELD:
Majority judges (4): All found that the appellant couldn’t be convicted
Minority judges (3): Found they could be convicted

STEP 1: CONSTRUE THE PROVISION - narrow vs broad construction

HAVING CONSTRUED THE PROVISION, THE NEXT ISSUE WAS WHETHER THE PROVISION WAS CONTRARY TO IFPC
aside: the court didn’t look to see if it was supported by cth HOP because this was a state provision and states have a plenary power so you don’t need a HOP to support a state law
Threshold question: were the appellant’s statements sufficiently connected with federal politics and government to be covered by an implication drawn from the Commonwealth Constitution? “Yes” owing to the integrated nature of police enforcement in Australia (see [80] McHugh J; [197] Gummow and Hayne JJ; [229] Kirby J)

NEXT Q: WAS THE PROVISION CONTRARY TO THE LANGEY TEST - changed part 2 of test

Question 19

8. Monis v The Queen (2013): Application of Langey & Coleman test

Answer 19

FACTS

• • Mr Monis alleged to have sent letters to fams of soldiers who died in Afghanistan - the letters were critical of aus’ military involvement in Afghanistan and reflected adversely on the soldiers
• charged

HELD
HC delivered 4 judgements (note only 6 judges sat)
-	Joint: crennan, keifel and bell
-	French
-	Hayne
-	Heydon 

STEP 1 CONSTRUE THE CHALLENEGED LEG - narrow vs broad interp of “offensive”

HAVING CONSTRUED THE LEG, NEXT ASK WHETHER THE CTH HAD POWER TO ENACT THE LAW

• This wasn’t an issue in this case
• S 51(5) – cth power to make laws with respect to postal, telephonic etc services

THEREFORE, NEXT Q: WAS THE PROVISION INVALID IN LIGHT OF IFPC (Langey & Coleman test)
Monis and application of the Lange test as modified in Coleman v Power
1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? All judges: Yes
2. Is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
o Crennan, Kiefel and Bell JJ: Yes
o French CJ (Heydon J agreeing) and Hayne J: No

Because there was a 3:3 split- judiciary act – if the HC is evenly divided in an appeal – decision of the appeal court was affirmed- NSWCCA held the section to be valid, therefore the law was valid

Question 20

9. Unions NSW v NSW (2013); Application of Langey & Coleman test

Answer 20

FACTS

• • Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (“EFED Act”): prohibited political donations from anyone other than an individual enrolled on an electoral roll eg corps, unions
• Section 95G(6) of the EFED Act: reduced the amount a political party could spend on a State election campaign by the amount spent by organisations treated as affiliated with the party (and vice versa).

HELD
Step 1: Construe the leg: The construction of the laws was not in contention
Step 2: HOP? no need to consider whether the law came within HOP because this was a state power
Step 2.5: Before getting to langey test as modified in Coleman: Threshold question: does the implied freedom of political communication apply to restrictions on political communication arising in the course of a State election as opposed to a federal election?
- Joint judgement: Yes
Step 3: test- test satisfied but
, s 96D was invalid because did not nothing to promote that purpose and had no purpose other than to prohibit certain donations

Question 21

10. McLoy (2013)

Answer 21

FACTS
- Section 95A(1) of the EFED Act (NSW act): imposed a cap on the amount of political donations that could be made per person per financial year to or for the benefit of a registered party ($5,000); an unregistered party ($2,000); an elected member ($2,000); a group ($5,000); a candidate ($2,000); and a third-party campaigner ($2,000).
o Section 95B(1) prohibited a person from accepting a political donation to a party, elected member, group, candidate or third-party campaigner if the donation exceeded the applicable cap offence to accept the money
- Section 96GA of the EFED Act: made it unlawful for a “prohibited donor” to make a political donation and for a person to accept a political donation that was made (wholly or partly) by a prohibited donor.
o A prohibited donor was defined to include a corporate property developer and individuals closely associated with the corporate property developer.
- Section 96E of the EFED Act: prohibited a person making certain indirect contributions to election campaign

HELD
- HC unanimously upheld s 95(A) and s 96(E)
- 6:1 upheld s 96GA
French, keifel, bell and keane (Maj) set out a more structured approach for determining whether a law impermissibly infringes the implied freedom of pol com on govt and pol matters

Question 22

11. Brown (2017) - facts, holding, principle

Answer 22

FACTS

• • Two protesters protesting logging in TAS – prosecuted under TAS ct that prohibited protest in certain areas in TAS forest
• Although charges dropped – the protestors commenced proceedings in HC challenging validity of the laws saying they impermissibly burdened the implied freedom to pol com

Five judgements

• Joint: keifel, bell and keane- new test
• Gaegeler (accepted the reformulating but he doesn’t support the test- raised concerns about the correctness of the test)
• Gaudron – accepted rewording but raised considers re utility and correctness of having 3 stages of prop in the third step
• Nettle (agreed with joint broadly)
• Eddleman - Didn’t consider if 2 nd 3 should be reworded- he found there was no burden in q1 so he didn’t have to consider 2 and 3

Principle

• HC reformulated part of the test in Mcloy to align it more closely with the langey test reformulated in Coleman
• This means that all cases applying langey are still relevant
• now have the Mcloy/Brown test

Question 23

Preston v Avery

Answer 23

FACTS: - Both laws made it an offence for a person to protest or make certain communications with 150 meters of a place that gives abortion

• 5 sep judgements- court unanimously held that both laws did not interfere with the implied freedom
  o Joint: keifel, bell and keane
  o Gageler – didn’t apply the test- unsuitability of the process
  o Gaudron - didn’t apply the test- unsuitability of the process
  o Nettle
  o Eddleman – applied the test but made some changes