Constitutional Law Essay Huynh Uyen Vy Nguyen.docx

OPTION TWO QUESTION In late 2016, academic and journalist, Wendy Bacon, was arrested at a protest over the WestConnex project in Sydney’s Inner West. The arrest was facilitated by an amendment to the Law Enforcement (Powers and responsibilities) Act 2002 (NSW), s. 200 in early 2016. Discuss the possible constitutional ramifications of this provision.

WORD COUNT: 1741

I

INTRODUCTION

In 2016, the New South Wales government amended section 200 of the Law Enforcement (Powers and Responsibilities) Act 2002. The new provision, in effect, extends police powers in public assemblies.1 Wendy Bacon was arrested under this new law. This paper will discuss why the legislation has serious constitutional ramification in four parts. The first part will outline the 2016 amendments. In part II, I will discuss the implied freedom of political communication, and how section 200 could be constitutionally invalidated by the limitation. Part III will argue that the Constitution also protects the freedom of association, separate from political communication. The final part will consider the constitutional implications of the section under the New South Wales Constitution.

II

THE 2016 AMENDMENTS

Previously, section 200 strictly prohibits police from giving directions in ‘an industrial dispute, an apparent genuine demonstration or protest, a procession or an organised assembly’.2 The new provision continues to preclude police interference, 3 but has an additional two subsections.4 Subsection 3 gives an officer the discretion to give a direction if there is belief on ‘reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person’. 5 The police can now also give a direction if a protest obstructs traffic.6

1 Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act (No 7) 2016 (NSW) sch 3. 2 Jane Sanders, Police Powers Update (30 September 2016), Shopfront Youth Legal Centre . 3 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 200(1). 4 Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act (No 7) 2016 (NSW) sch 3. 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 200(3). 6 Ibid s 200(4).

III

IMPLIED FREEDOM OF POLITICAL COMMUNICATION

The provision can be invalidated if it is proven that there is a violation to the freedom of political communication. The implied freedom was a deliberate interpretation by the High Court in a series of 1992 cases,7 its existence derived from the words of sections 7 and 24 in the Constitution. According to the High Court, both sections provide that the members of the Senate and House of Representatives must be ‘directly chosen by the people of Commonwealth’.8 It would be illogical to not protect public political discussions when the representative government is decided by its citizenry.9 The nature of the implied freedom is not absolute,10 because it is not a source of positive rights. 11 However, it guarantees protection for some communication. Therefore, legislative power of the Commonwealth can be judicially limited.12 The construction of section 106 broadens the limitation to state legislative powers.13 In effect, this was to preserve the effectiveness of the constraint on the Commonwealth. Stephens v Western Australian Newspapers reaffirms that the implied freedom of political communication includes ‘all political discussion, including discussion on political matters relating to government at State level’.14 Lange v Australian Broadcasting Corporation introduced tests to be applied on statutes. 15 Coleman v Power modified the construction of the tests.16 a) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? 17

7 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 8 Australian Constitution s 7, 9. 9 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 70. 10 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 142. 11 Tajjour v New South Wales [2014] HCA 35 (8 October 2014) [33]. 12 Ibid [32]. 13 Australian Constitution s 106. 14 (1994) 182 CLR 211, 232. 15 (1997) 189 CLR 520, 567. 16 (2004) 220 CLR 1, 50. 17 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567.

b) If the law effectively burdens that freedom, is the law reasonable appropriate and adapted to serve a legitimate end … compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 18

Only a low threshold proportionality test is needed to answer the second limb. 19 If a law burdens the freedom but has no reason to, then it is likely to be invalid.20 Lange v Australian Broadcasting Corporation also established that a sufficient nexus must exist between the communication and federal voting choices.21 This is an important criterion to repeal laws incompatible with the implied freedom. Only ‘explicit political communication’ attracts constitutional protection.22 Precedential case authorities for implied freedom is criticised for not establishing its scope. 23 Authority in Lange v Australian Broadcasting Corporation only broadly requires a political communication to ‘could affect choices in federal elections and constitutional referenda’.24 The choice of terminology suggests intention of the protester is not important in defining what a political and constitutionally protected communication is.25 However, there is nothing concrete on what is considered a political discussion protected by the Constitution.26 The essay supports the test of ‘likely audience’, proposed by Dr. Dan Meagher, to fill this gap.27 Communication is ‘considered “political” if the subject matter of the communication may reasonably be relevant to the federal voting choices of its likely audience’. 28 An application of the ‘likely audience’ test questions whether the protest against WestConnex would influence witnesses’ federal voting choices. The demonstration was on Holmwood

18 Ibid. 19 Unions NSW v New South Wales [2013] HCA 58 (18 December 2013) [44]. 20 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 568. 21 (1997) 189 CLR 520, 560. 22 Ibid 571. 23 Dan Meagher, ‘What is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne University Law Review 438, 459. 24 (1997) 189 CLR 520, 571. 25 Meagher, above n 23, 463. 26 Ibid. 27 Ibid 466. 28 Ibid 467.

Street in Newtown.29 The WestConnex scheme is a joint project between the New South Wales and Commonwealth governments.30 It is reasonable to infer that the protest is a political message that will deter other people, who share similar views, from voting for the political party responsible for the project at a consecutive federal election. Thus, the test of ‘likely audience’ and those formulated in Lange will find the provision invalid.

IV

FREEDOM OF ASSOCIATION

Australian Capital Television Pty Ltd v Commonwealth drew a distinction between direct interference with implied freedom of political communication and mere incidental impact. 31 The High Court applies a more relaxed interpretation to a law that only indirectly burdens free political communication.32 A constitutional protection may exist for freedom of association, but only as a corollary to the implied freedom of political communication. 33 In Tajjour v New South Wales, Gageler J cautiously emphasises, ‘association for the purpose of engaging in communication on … political matter is part and parcel of the protected freedom’.34 The revised section 200 permits police to give directions in demonstration. If a protest does not fall within the scope of political communication, it is possible that there is no protection 29 Raveen Hunjan and Antoinette Lattouf, ‘WestConnex: Journalist and Protester Wendy Bacon Criticises Police After Being Detained’, ABC News (online), 22 October 2016 . 30 Department of Infrastructure and Regional Development, Australian Government, WestConnex (21 April 2017) . 31 (1992) 177 CLR 106, 143 (Mason CJ), 235 (McHugh J). 32 Murray Wesson, ‘Tajjour v New South Wales, Freedom of Association, and the High Court’s Uneven Embrace of Proportionality Review’, (2015) 40 University of Western Australia Law Review 102, 105. 33 Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 184; Tajjour v New South Wales [2014] HCA 35 [143]. 34 [2014] HCA 35 [143].

under the Constitution. This is because the state legislature has leeway to justify a law, that does not directly interfere with the implied freedom, as incapable of attacking the representative and responsible government protected by the Constitution. It is interesting to note that this is an identified danger with the current principles of implied freedom of political communication. It is more logical if the Constitution protects freedom of communication and association as separate entities. The purpose of association is to engage in communication about a political matter.35 George Williams mentions that protection of both freedoms are fundamental to the system of representative governments construed by sections 7 and 24 of the Constitution. 36 He says, ‘the ability to associate for political purposes is obviously a cornerstone of representative government of Australia’.37 If people are denied the ability to form political associations, are they really free to choose their government representatives? 38 In Australian Capital Television Pty Ltd v Commonwealth, Gaudron J states, ‘the notion of a free society governed in accordance with the principles of representative democracy may entail freedom of movement, freedom of association and perhaps, freedom of speech generally’.39 This shows that protection should not be exclusive to political communication; as freedom of association as the crux of a free and democratic society.40

V

CONSTITUTIONAL RAMIFICATIONS UNDER NSW CONSTITUTION A The Phrase ‘Peace, Welfare and Good Government’

Additional to Commonwealth limitations, a state legislation can have constitutional ramifications if it is not valid pursuant to state constitutions. Constitution Act 1902 (NSW) is relevant to a discussion of the constitutional validity of section 200 of Law Enforcement 35 Anthony Gray, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32(2) The University of Tasmania Law Review 149, 159. 36 George Williams, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’ (2006) 20 Melbourne University Law Review 846, 861. 37 Ibid 856. 38 Ibid. 39 (1992) 177 CLR 106, 138. 40 Gray, above n 35, 154.

(Powers and Responsibilities) Act. The constitution of New South Wales declares, ‘the legislature shall have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever’.41 The state government have plenary power, unlike the enumerated powers of the federal government, and can make any laws. 42 The case of Building Construction Employees v Building Labourers Federation suggests section 5 hints at the possibility that the parliamentary sovereignty of states can be limited, if a law is judicially construed as not serving the ‘peace, welfare and good government of New South Wales’.43 Street CJ held that the limit is a binding one. 44 However, recent precedent in Union Steamship Co of Australia Pty Ltd v King held that there is no legitimacy to limit states’ plenary power.45 Thus, the expression ‘peace, welfare and good government’ cannot be construed as words of limitations.

B Limits Based on Abrogation of ‘Rights Deeply Rooted’ Rights to peaceful assembly is an Australian common law right.46 ‘Right to peaceful assembly’ is internationally recognised.47 Prima facie, an assembly that is in good order should not be prohibited or interfered with.48 Union Steamship Co of Australia Pty Ltd v King hinted, but did not discuss, the possibility of the judiciary limiting a law that abrogates ‘deeply rooted’ common law rights, or rights enshrined in the democratic system. 49 Durham Holdings Pty Ltd v New South Wales discusses the issue of ‘whether or not the right to receive “just” or “properly adequate” compensation is such a “deeply rooted right” as to operate as a restraint upon the legislative power of the New South Wales parliament’. 50 In this case, the plaintiffs failed to contest the validity of the operation of section 5 of the Coal Acquisition Act 1981 (NSW), as they could not establish that the right to receive properly 41 Constitution Act 1902 (NSW) s 5. 42 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 5. 43 (1986) 7 NSWLR 372, 383. 44 Ibid 384. 45 (1988) 166 CLR 1, 9. 46 Australian Law Reform Commission, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, Report No 129 (2016) 163 [6.13]. 47 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 21. 48 LexisNexis, Halsbury’s Laws of Australia (at 05 September 2016) 3 Political Rights, ‘3 Freedom of Association, Assembly and Procession [80-2145]. 49 (1988) 166 CLR 1, 10. 50 (2001) 205 CLR 399, 409.

adequate compensation is a deeply rooted right at common law. 51 However, judgments uphold the possibility that constitutional ramifications can exist if a state law abrogates deeply rooted rights.52 Kirby J did suggest that, ‘a law of a state could only be a “law” of a kind envisaged by the Constitution’.53 Given that the freedom of association is a recognised ‘deeply rooted right’, it is highly probable that section 200 abrogates such right because it empowers police, exercising reasonable belief, to dissemble a public assembly and terminate open discussions on political matters.

VI

CONCLUSION

The analysis of possible constitutional ramifications suggests that section 200 of Law Enforcement (Powers and Responsibilities) Act 2002 is unconstitutional. The paper discussed the implied freedom of political communication, and identified that the absence of a defined scope for political communication is a small issue. The paper supported the test of ‘likely audience’ to clarify the scope of the implied freedom; and argued that an application of the ‘likely audience’ test and those formulated in Lange will render section 200 constitutionally invalid. The paper also examined reasons why the Constitution should protect freedom of association separate from political communication. It is concluded that section 200 violates the implied freedom of political communication because it directly prevents the expression of political messages, by empowering police to give directions in legitimate associations. Section 200 can also be invalidated by the Constitution of New South Wales, as it abrogates the right to assembly. This is an established common law right deeply entrenched in the Australian democratic system. Therefore, it is highly probable that section 200 will be invalidated if it is challenged.

BIBLIOGRAPHY 51 Ibid 405. 52 Ibid 431. 53 Ibid.

A. Articles/Books/Reports Gray, Anthony, ‘Freedom of Association in the Australian Constitution and the Crime of Consorting’ (2013) 32(2) The University of Tasmania Law Review 149 Meagher, Dan, ‘What is Political Communication? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne University Law Review 438 Wesson, Murray, ‘Tajjour v New South Wales, Freedom of Association, and the High Court’s Uneven Embrace of Proportionality Review’, (2015) 40 University of Western Australia Law Review 102 Williams, George, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’ (2006) 20 Melbourne University Law Review 846

B. Cases Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 Building Construction Employees v Building Labourers Federation (1986) 7 NSWLR 372 Coleman v Power (2004) 220 CLR 1 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Mulholland v Australian Electoral Commission (2004) 220 CLR 181 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Stephens v Western Australian Newspapers (1994) 182 CLR 211 Tajjour v New South Wales [2014] HCA 35 Unions NSW v New South Wales [2013] HCA 58 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

C. Legislation Australian Constitution Constitution Act 1902 (NSW)

Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act (No 7) 2016 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) D. Treaties International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) E. Other Australian Law Reform Commission, Traditional Rights and Freedoms— Encroachments by Commonwealth Laws, Report No 129 (2016) Department of Infrastructure and Regional Development, Australian Government, WestConnex (21 April 2017) Hunjan, Raveen and Lattouf, Antoinette, ‘WestConnex: Journalist and Protester Wendy Bacon Criticises Police After Being Detained’, ABC News (online), 22 October 2016 LexisNexis, Halsbury’s Laws of Australia (at 05 September 2016) Sanders, Jane, Police Powers Update (30 September 2016), Shopfront Youth Legal Centre