Does The High Court Recognise An Implied Right To Freedom Of Speech

DOES THE AUSTRALIAN HIGH COURT RECOGNISE AN IMPLIED RIGHT TO FREEDOM OF SPEECH?

Aaron Magner*

Introduction The Australian Constitution does not express all that is intended by it. That the Constitution gives rise to implications which inform its construction is well established.1 The High Court has however been castigated from time to time for further expanding the interpretation of the Constitution by recognizing a range of implied rights, what is mistakenly referred to as an implied right of free speech. This essay considers whether the Australian High Court ever actually recognised an implied right to freedom of speech. In examining constitutional law, the degree of implied interpretation a person considers appropriate will be based on the methodology of constitutional interpretation they prefer. This essay will look at the alternative approaches to constitutional interpretations and the approach of different majorities of the High Court have taken on the major so called freedom of speech cases. The appropriate role of the High Court in dealing with questions of implied rights is also discussed. Arguments in support and against the High Court implying freedom of speech into the Constitution are considered. Finally, while I find the High Court was correct in recognising an implied freedom of speech, in order to give such rights legitimacy, authority, and clarity specific endorsement for freedom of speech derived from a Bill of Rights is required and long overdue.

THE ORIGINS AND SCOPE OF THE IMPLIED FREEDOM OF SPEECH

“Congress shall make no law … prohibiting the free exercise thereof, or abridging the freedom of speech…” American Declaration of Independence(1776) * Aaron Magner is a Legal Counsel from the University of New South Wales (UNSW) Sydney, Australia. Aaron advises on, reviews, negotiates and drafts a wide range of commercial agreements, provides policy, legislative and strategic advice to senior university management and executive. He also advises on internal complaints and manages litigation matters. This is essay submitted in 2002 for Constitutional Law with Professor Andrew Lynch (now UNSW) and Professor Patrick Keyzar (now Bond University). *

For example Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 implied State autonomy and prohibited discriminatory interference; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 implied the doctrine of separation of powers, to name but two. 1

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Bill of Rights - Amendment I

Unlike other western democracies, Australia’s legal jurisprudence does not contain an express constitutional right to freedom of speech.2 Indeed the framers of Australia’s Constitution explicitly resolved not to include a comprehensive list of fundamentals freedoms and individual rights but instead placed their confidence in responsible government3 to safeguard freedoms.4

Early development of the Implied Freedom The idea that the Constitution contains, by implication, a range of rights and freedoms, was first foreshadowed by the illustrious Justice Lionel Murphy in a series of minority judgments5 which provided the catalyst for later High Court recognition of the implied freedom of speech.6 The Court revisited the implied freedom of speech in Nationwide News7 and Australia Capital Television8 where a majority of the bench found that the Constitution necessarily implied the doctrine of representative government9 and that this, in turn, implied the existence of freedom of political communication with respect to matters relating to Australian government.10 This multiple stageimplication; from the text - to representative government - to freedom of communication, extended the scope of judicial review beyond that expressed in the written text of the constitution, raising Contrast the Commonwealth Constitution (1901) with Constitution of the United States (1788) esp. “Bill of Rights” Amendment I (1791). Also contrast with the Canadian Charter of Fundamental Rights and Freedoms, Bill of Rights Act (NZ) 1990 and the European Convention on Human Rights. 2

See Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 per Knox CJ, Isaacs, Rich and Starke JJ at p146 and pp 151-152 3

Official Record of the Debates of the Australian Federal Convention (Melbourne, 8 February 1898) at 688-90,

4

See Murphy J in R v Director of General Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54, Ansett Transport Industries (Operations) Pty Ltd v Wardely (1980) 142 CLR 237, Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 5

Gaudron and Toohey JJ cited with approval Murphy J’s in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 212. For a discussion of Murphy J’s influence in the development of the implied freedom of speech see Blackshield, A., and Williams, G., Australian Constitutional Law and Theory : Commentary and Materials (Sydney): The Federation Press, 1998 pp1055-1056; Williams, G. Human Rights under the Australian Constitution, Oxford University Press, 1999 pp156-165. See also Judgments of Lionel Murphy, Blackshield, et. al., Primavera Press, Sydney, 1986 pp 23-26. 6

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

7

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106

8

By virtue of the provisions in s 7 dealing with The Senate, s 27 dealing with The House of Representatives, both requiring that the members of Parliament be “directly chosen by the people.” Also sections 25, 64 and 128 were held to have further affirmed this implication. 9

Nationwide News per Brennan J at 50-1, per Deane and Toohey J at 72-3, per Gaudron J at 94-5; Dawson J dissenting, Australia Capital Television per Mason CJ at 139, Brennan J at 149 Deane and Toohey JJ at 168 Gaudron J at 212 and McHugh J at 233. 10

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the prospect of the Court endeavoring to imply other rights through the principle of representative government such as freedom of assembly, association and the like.11

Expansions of Freedom of Speech The implied freedom was further developed in the judgments of Theophanous12 and Stephens13 where the majority of the court held that Australian defamation law should be overridden by a constitutional defence of freedom of political communication.14 These decisions expanded the concept of political communication to matters of public affairs and opinions, not necessarily directly connected to the suitability and policies of candidates for the Senate and House of Representatives. The implication was, however, cast narrowly as a limit on government power as opposed to an individual right, and did not extend to protect commercial speech without political content.15 Freedom of Speech Confined and Defined In each of the so called ‘freedom of speech’16 cases up until this time the High Court was divided in its approach to the recognition of an implied freedom.17 This division was resolved by the unanimous judgment in Lange18 where the High Court compromised and as a result articulated a more limited view, of political communication applying a two-tiered test to determine the validity of a law. This test asks firstly what the object of the law is and whether it is compatible with the maintenance of the constitutionally prescribed system of government and secondly, whether the law is “reasonably appropriate and adapted to serve a legitimate end.”19 This is a narrower, more textual based approach to interpretation similar to that of the minority judgments in earlier freedom of speech cases.20 As suggested in Aroney, N, Freedom of Speech in the Australian Constitution, The Centre for Independent Studies , Brisbane, 1998. The term multiple stage implications is taken from this text. 11

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104

12

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211

13

Mason CJ, Deane, Toohey and Gaudron JJ in the majority; Brennan, Dawson and McHugh JJ dissenting. Same 4:3 division of judges in both Theophanous and Stephens. 14

Theophanous (1994) 182 CLR 104, per Mason CJ, Toohey and Gaudron JJ at 125 “not all speech can claim the protection of the constitutional implication of freedom” 15

The freedom of speech cases include; Nationwide News (1992) 177 CLR 1, Australian Capital Television (1992) 177 CLR 106, Theophanous (1994) 182 CLR 104, Stephens (1994) 182 CLR 211, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Langer v The Commonwealth (1996) 186 CLR 302, and Levy v Victoria (1997) 189 CLR 579 16

Pre-Lange, Brennan, McHugh and Dawson JJ were not comfortable with the idea of an implied freedom of political communication, Mason CJ, Toohey, Gaudron and Deane JJ were in favour of implied freedom of political communication. 17

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. 18

Ibid at 567. The majority decision in Australian Capital Television (1992) 177 CLR 106 is then cited as an example of this test in operation. 19

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Freedom of Speech – A Dead Duck? Following Lange, the High Court brought down a contradictory judgment in Levy.21 In rejecting Mr Levy’s action for protection in accordance with the implied freedom of speech unanimously agreed in Lange, the Court divided in their method applying the new rule casting doubt on what the limits of the freedom were and raising questions about the usefulness of the principle generally [discussed below].

ALTERNATIVE APPROACHES TO CONSTITUTIONAL INTERPRETATIONS AND THE ROLE OF THE HIGH COURT “Written constitutions are specially ambiguous. Old common law precedents are sometimes silent or not really applicable to the legal problem in hand. Resolving the ambiguities, repairing the obscurities and filling the gaps, judges inescapably have a creative role.” Hon Justice Michael Kirby22 The “creative role” of the High Court, described by Kirby J, reflects the well established judicial method whereby implications are made to assist interpretation where some accepted fact or principle is not expressly stated in the text of the Constitution. Throughout Australia’s history the High Court has made landmark decisions involving read into the Constitutional implications have provided the foundation for judgments which profoundly influenced the life and future of the nation.23 Whenever these cases arise, determining the appropriate role of the High Court leads to questions about the role of judicial decision making in a constitutional democracy and the relative merits of, on the one hand an approach that leaves judges with flexibility and on the other, limiting their discretion while providing greater certainty.

Especially Brennan and McHugh JJ (dissenting) in Theophanous. This change in the approach of the majority may reflect the changed composition of the Court. The 4:3 majority in Stephens and Nationwide News was Mason CJ, Toohey, Gaudron, and Deane JJ. The minority was Brennan, Dawson and McHugh JJ. In Lange the retirement from the Bench of Mason CJ, Deane J and the appointment of Gummow and Kirby JJ may be of some significance. Also of note is that Brennan CJ appeared to change his mind! 20

Levy v Victoria (1997) 189 CLR 579 where the court reviewed regulations intended to prevent access by political protesters to duck shooting areas. 21

Judicial Activism, The Denning Law Journal, 23 January 1999

22

23

For example, the implied autonomy and integrity of the states found in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, the implication of separation of powers in R v Kirby; Ex parte Boilermakers’ Society of Australia (the Boilermakers’ Case) (1956) 94 CLR 254.

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Within the discipline of constitutional law there are competing interpretive approaches which when applied could support varyingly degrees of implied interpretation.24 For example those who favour originalism will have a particular view of what makes up the Constitution, and what methods are appropriate for this task,25 while those who prefer a more flexible interpretation insist that while the words remain the same we inevitably see the unchanged language in a different light than the original framers in an earlier century.26 According to this later view, the meaning and content of the words take colour from the circumstances in which the words must be understood and to which they must be applied. 27 The Mason and Brennan courts in the Freedom of Speech decisions although divided and not strictly adhering to any particular approach were generally more evolutionary in their method of interpretation.28

The Constitutional Method in Lange In Lange the High Court endorsed a test whereby a law which “effectively burden[s] freedom of communication about government or political matters”, must be “reasonably appropriate and adapted to serve a legitimate end”.29 Essentially the test requires the Court to balance the competing claims and determine whether the impact on freedom of communication is disproportionate to the other interest/s served by the legislation.30

Freedom of Speech Shot Down in Levy Despite the framework within which the implied freedom of speech was to operate being unanimously decided in Lange, when applied in Levy31, the waters were For example originalism, textualism and contemporary meaning et.al. These theories of Constitutional Law are highly theoretical and closely interrelated to other disciplines such as politics, ethics, philosophy, history which also have different approaches. See Blackshield, A. R, and Williams, G. Australian Constitutional Law and theory : Commentary and Materials (Sydney): The Federation Press, 1998 pp 819-899. 24

The theory of originalism, also referred to as intentionalism, argues that, of its nature, a written Constitution has a fixed meaning which does not change with time and that such meaning is the same as the words signified when the Constitution was first adopted. See Craven G., “The crisis of Constitutional Literalism in Australia” in Lee H., and Winterton, G. (eds), Australian Constitutional Perspectives (1992), 20-23. A literalist approach was favoured in The Engineers' case (1920) 28 CLR 129. 25

Kirby, J, “Constitutional Interpretation and Original Intent – a Form of Ancestor Worship?”, 1999 Sir Anthony Mason Lecture, Melbourne, September 1999 <www.hcourt.gov.au/speeches/kirbyj/> (14/4/00). 26

For example Theophanous (1994) 182 CLR 104 at 171-173 per Deane J.

27

This essay confines its discussion to the competing approaches of the High Court in dealing with the implied freedom of speech rather than a thorough examination of each of the approaches to constitutional interpretation. 28

Lange (1997) 189 CLR 520, at 567.

29

Jones, M., “Freedom of Speech Revisited : The Implications of Lange & Levy”, (1997) 4 Australian Journal of Human Rights 188 at p200. Also see Lange (1997) 189 CLR 520 at 567 fn 272 where the judgment suggests there is little difference between this test and the test of “proportionality”. 30

Levy v Victoria (1997) 189 CLR 579

31

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muddied.32 Applying the first element of the proportionality test, the Court identified the end served by the law as “protester safety”.33 The Court then considered the “proportionality” of the measure chosen to pursue that end. Each judgement found that the law was reasonably appropriate and adapted to protect protester safety,34 however in contrast with the unanimity in Lange, in Levy there were six separate judgements each balancing the interest pursued by the law against that pursued by the freedom and while coming to the same decision, arriving by a different means.35

So where does the high Court sit on Free Speech? All this confirms that constitutional litigation is unpredictable.36 The Court in the freedom of speech cases heard to date, appears to vary its decision depending on the composition of the Bench and particular nuances in the factual case, rather than in accordance with a general philosophical principle. This subjective and arbitrary approach to the freedom of speech principle exposes the High Court to the criticisms that it is making political decisions.

The Politics of High Court Decision Making Whenever difficult constitutional cases are decided by the High Court without the Court being able to rely on directly applicable common law precedents, the bench inevitably faces criticisms.37 Rejecting an action on the ground that a specifically and deliberately oppressive law did not infringe freedom of political communication [as in Langer38 and Levy39] justifiably exposes the court to the criticism that it is itself making a political See discussion in; Stone, A., The Limits of Constitutional Text and Structure : Standards of Review and the Freedom of Political Communication, Melbourne University Law Review 23 [1999] at 680-81. 32

Wildlife (Game) (Hunting Season) Regulations, regulation 5 : Made it an offence to enter a “permitted hunting area” without a duck shooting licence. Whether the object of the law was really safety or political protest is arguable and reliant on the subjective opinion of the bench. See discussion in Jones, M., “Freedom of Speech Revisited : The Implications of Lange & Levy”, Australian Journal of Human Rights, 4 (1997) at 201-3. 33

Levy v Victoria (1997) 189 CLR 579, per Gummow & Toohey JJ at 614-15, McHugh J at 627, Kirby J 647-8.

34

Only Dawson J and McHugh J applied in Levy the test decided in Lange. Brennan’s CJ’s approach was more deferential to the powers of the legislature as in ACTV at 158-9. While a two-tiered test reminiscent of ACTV re emerged in the judgments of Gaudron, Kirby, Toohey and Gummow JJ. See Stone, MULR 23 [1999] at 680-81. 35

For example the result in Levy is difficult to reconcile with Lange. Further, in Lange, Brennan CJ, Dawson, McHugh, Toohey and Gaudron JJ effectively changed their previous views on the implied freedom of speech. The decision in Langer (1996) 186 CLR 302, is also difficult to reconcile with the decision in ACTV : see Dawson J (dissenting) in Langer at 326-327. 36

See Kirby J, “Attacks on Judges – A Universal Phenomenon”, Speech to American Bar Association Conference, Maui, Hawaii, January 1998 <www.hcourt.gov. au> (16/4/00) 37

In Langer the Commonwealth Electoral Act 1918 (Cth) prohibited the publication of material encouraging voters to complete their ballot paper in a way which would undermine the two party system. Albert Langer was ultimately gaoled for this “crime”. Amnesty International declared him a prisoner of conscience. 38

Wildlife (Game) (Hunting Season) Regulations : See fn 33.

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decision about what is and what is not political, and in doing so the High Court itself limits freedom of expression.

It is also ironic that unelected judges declared legislation enacted by elected representatives invalid (as in Nationwide News40 and ACTV41) on the basis that it offends a judicial implication derived from the democratic nature of the Constitution. Curiously, the constitutional protection of freedom of speech appears to be only as strong as the ideological persuasion of the High Court and the political power or popularity of the cause.42 For related reasons supporters of judicial restraint in constitutional decisionmaking suggest that because judicial review imposes upon the power of legislature, it should be used sparingly. Leslie Zines for example, cautions that the extension of implications in the Constitution effectively “transfers power from institutions over which the electors have some control”, that is, the legislature, to the High Court, over which they have none43 and that this risks judicial importation of unexpressed limits to legislative power threatening judicial aggrandizement.44

Other critics of the freedom of speech decisions argue that as the Constitution is a written one, the appropriate judicial method is one of interpretation45 and that if freedom of speech is to be read into the Constitution, these implications must be closely linked to representative democracy if they are to be legitimate.46 This argument is thoroughly unconvincing given the recognition of well established doctrines such as representative government and the separation of powers, which are not written but are implied by the Constitution.47 It is therefore naive to reject the use of implications and other fundamental principles48 in the interpretation of the Constitution. Implications, thoughtfully applied, are a logical and necessary tool to compensate for a rigid and largely dated written constitution.

Industrial Relations Act 1988 (Cth) – The object of the law was to make it an offence to criticise the Australian Industrial Relations Commission 40

Political Broadcasts and Political Disclosures Act 1901 (Cth) : Sought to contain the trend toward big money politics in Australia by prohibiting political advertising during elections. 41

See Jones, M., “Freedom of Speech Revisited: The Implications of Lange & Levy”, Australian Journal of Human Rights, 4 (1997) 188 at 203-204. Referring to Langer and Levy. 42

Zines, L., “The Sovereignty of the People” in Coper, M., and Williams, G. (eds), Power, Parliament and the People (1997) 91 at 104. 43

Zines, L., Constitutional Change in the Commonwealth, Cambridge University Press, Cambridge 1991, at 51.

44

Aroney, N, Freedom of Speech in the Australian Constitution, Centre for Independent Studies, Brisbane, 1998.

45

Kirk, J., “Constitutional Implications from Representative Democracy”, Federal Law Review, 23 (1995) at 48

46

See fn 23. Other concepts not articulated in the Constitution include the Cabinet, reserve powers of the Governor General and despite deceptive appearances from the text, the irrelevancy of the Queen. 47

Such as the rule of law, judicial review, federalism and the like.

48

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Is an Express Freedom of Speech Necessary? Unfortunately the Constitution is not easily reviewable and the chances of achieving an express constitutional charter of rights, such as a Bill of Rights, is poor, given the low success rate of referendums.49 Following the freedom of speech cases some commentators have suggested that if we give the High Court enough time, a Bill of Rights, implied out of the Constitution, will emerge, to protect implied freedoms.50 But do we really want judges rather than parliaments or the people to define our rights and freedoms? Without an express guarantee founded upon principles clearly stated in the national Constitution or in the form of a Bill of Rights, the punters who want to protect their rights through the courts have the odds stacked against them. The obvious limitation of freedoms which do not exist in the text is that we simply do not know what the boundaries of free speech are. In the absence of express provisions it is logical that the High Court inevitably moved to fill the constitutional void. In doing so the Court has endeavoured to strike a balance between the communities desire for freedom of speech as a necessary foundation of representative democracy and the individual’s interest in protection of reputation and the regulation of other harmful forms of speech. Where, however, should the Court draw the line and say the nexus between speech and harm is too close and the speech must be denied protection?

Pursuant to s128 of the Constitution. The double majority requirement of “ a majority of the states” and “ a majority of electors”, means 4 out of 6 states must approve a change to the Constitution. Since federation only six referendums have been successful in altering the text of the Constitution. The referendum machinery in s128 itself must be reformed, although this issue deserves a separate paper. In the meantime we must rely on either High Court review of the Constitution or genuine and enthusiastic bipartisan support for constitutional reform. 49

Zines, L., “A Judicially Created Bill of Rights?”, Sydney Law Review, 16 (1994) 166, also extra judicially Toohey J “A government of Laws and Not of Men” (1993) 4 PLR 158 at 170 suggesting that over time an “implied bill of rights” might be derived from decisions of the High Court. 50

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IS FREE SPEECH A GOOD THING AND IS IT ESSENTIAL TO DEMOCRACY?

“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech…” Benjamin Franklin, 1788 According to John Rawles, a western view of democracy presupposes freedom of speech and assembly, and liberty of thought and conscience. 51 In examining the theoretical basis for constitutional liberties Rawles contends that a just Constitution should enable political parties to seek the citizens’ approval for policies against a background where freedom of expression is assured, where the public forum is free and open to all and everyone has a fair chance to add alternative proposals to the agenda for political discussion.52

Some Australian academics on the other hand have suggested that protecting free speech from regulation may hinder rather than advance public debate by excluding the voices of some and emphasising the voices of others53 and that a truly full and fair discussion of public affairs may actually require government intervention.54 This more pragmatic view is corroborated by the political and social reality that inequalities in the capacity to communicate and access information means those that have better means use their advantage to control the course of public debate.55

The Influence of United States Jurisprudence In carving out our own free speech jurisprudence the High Court was made reference to values and principles external to the Constitution. Aside from reference to the text and structure of the Constitution the bench looked to free speech provisions which appear in the amendments to the Constitution of the United States of America56. In doing so the majority of the High Court reflected the shift within Australian society from state paternalism57 to a belief in a smaller, less interventionist government allying themselves with the philosophy of suspicion and hostility toward government intervention.58 This sentiment is revealed in the influence of a United States Supreme Court decision in New Rawles, J., A Theory of Justice, Harvard University Press, Massachusetts, 1999, pp187-99.

51

Ibid.

52

Stone, A., The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication, Melbourne University Law Review 23 [1999] p 668-708. 53

See Flavin, A., “Can Legislation prohibiting hate speech be justified in light of free speech principles?”, University of New South Wales Law Journal, 18 (1995) 327. 54

In each of the free speech cases the successful party has been major media company and an ex-Prime Minister.

55

For a discussion of the First Amendment to the United States Constitution and the broad meaning of free speech established by the United States Supreme Court see Williams, G. Human Rights under the Australian Constitution, Oxford University Press, Sydney, 1999 p 167-168. 56

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York Times v Sullivan59 where the Court adopted its analysis of the effect of liable action on free speech.60 Even in the methods of constitutional interpretation, the USA’s idea of what constitutes a model western democracy, establishes a hold on the approach of the High Court of Australia. The Herculean Task of Constitutional Interpretation The dilemmas which arise from the High Court’s approach in finding that the Constitution has an implied freedom of speech could be compared with the Hydra.61 For example, in a constitutional democracy when dealing with fundamental rights and freedoms, whose views should prevail - the Parliament’s or the Court’s? Who should answer these questions - the people, parliaments or the courts? If we answer – the Courts, then in a democracy should an unelected Court62 have the power to overturn the will of the majority expressed through Parliament?63 If we answer - the Parliament, what should the limits to the legislatures powers be? (given the Constitution expressly confers jurisdiction on the High Court in matters involving its interpretation.64) Each issue gives rise to a number of related issues and like the Hydra, with each question answered, new unanswered questions arise. The task of interpreting the scope of express constitutional rights and freedoms is difficult enough65 but this becomes a truly Herculean task where the constitutional freedom or prohibition is implied.66 This essay has attempted to identify and provide an overview of the key issues which raise their head in this topic, however the multi-headed issues which this beast of a question gives rise to requires more thorough discussion than this paper is able to provide. State Paternalism refers to a contentment with state intervention and a faith government power, believed by political sociologist to be one of the defining characteristics of the Australian settlement, originating in our convict/military history. See Kelly, P., The End of Certainty, Allen and Unwin, Sydney, 1992 at 9-11. 57

A choice that does not necessarily flow from its identification of freedom of political communication with representative government. See Stone, A., "Freedom of Political Communication and the Common Law”, Federal Law Review, 26 (1998) 219-257 at 235. 59 376 US 254 (1964) where there is a limited capacity of political figures to bring actions for defamation. 60 Theophanous (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ at 182-183 per Deane J. 58

The Hydra is a multi-headed beast in Greek mythology, which possessed the rather disturbing property that for each head valiantly removed by the warrior Hercules, two heads would quickly grow from the stump of the neck left behind. 61

See section 72 of Constitution. High Court judges are not elected but appointed and have tenure until the retiring age of 70 and in all but extreme cases are beyond recall of the parliament. 62

As argued by McHugh J in McGinty (1996) 186 CLR 140 “Should the High Court have implied freedom of speech and other freedoms or is this more appropriately a role for the people?” Quoted at Keyzer, Constitutional Law, Butterworths, Sydney, 1998 p296. 63

s76 of the Constitution.

64

See for example the constitutional litigation with respect to s 41 referring to the right of electors of states, s 51(xxxi) dealing with the Commonwealth rights in the acquisition of property, s 80 the right to trial by jury, s 116 dealing with religious freedom, and s 117 concerning the rights of residents in States. 65

The Hydra beast was successfully slain by Hercules, by ensuring that each neck was properly cautersied immediately subsequent to the removal or its corresponding head. Similarly it is the mission of the student of constitutional law to recognise when each legal question has been adequately dealt with and then, in addition, to judge when a newly growing head or issue should itself be recognised as having independent status. 66

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Conclusion Uninhibited free speech does not have constitutional protection in Australia. Commonwealth and State legislatures have passed laws dealing with defamation,67 racial hatred,68 obscene and blasphemous libel,69 copyright,70 official secrecy,71 contempt of court,72 censorship,73 treason74 and the like, placing express limits on speech and expression. Influenced by, amongst other things, United States jurisprudence, the High Court recognised a limited constitutional implication arising from our system of representative government which operates to protect a narrowly defined form of communication; speech which relates to government and political matters.

Whether the High Court should have recognised an implied freedom of speech in the Constitution will depend on ones preferred school of thought. Looking at the question from a broader political and social viewpoint, the answer will depend on your preferred idea of what constitutes democracy.75 From a pragmatic perspective, the question will ultimately be informed by ones own ethical, ideological and moral values. From a legal perspective the degree of implied interpretation considered appropriate depends on the methodology of constitutional interpretation which is preferred.

Australia is the only western nation without an express guarantee to free speech and as a result we must rely on freedoms implied, in the Constitution. The High Court therefore should have recognised and develop the implied freedom of speech - beyond the narrow definition of political communication established in Lange, - and ultimately re-examine and replace this with a more defined body of methodological rules.

Defamation Act 1974 (NSW)

67

Racial Hatred Act 1994 (Cth), Anti-Discrimination Act 1977 (NSW)

68

Crimes Act 1900 (NSW) s 574, Summary Offences Act 1988 (NSW), Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) s 574 et. al. 70 Copyright Act 1968 (Cth) 69

Secret Commissions Act 1905 (Cth)

71

Supreme Court Act 1970 (NSW), District Court Act 1973 (NSW) et. al.

72

Obscene and Indecent Publications Act, Customs (Cinematorgraph Films) Regulations, Theatres and Public Halls Act (NSW) et. al 73

Crimes Act 1914 (Cth) s24, Defence Force Discipline Act 1982 (Cth) s104

74

The discipline of political science would categorise this as a choice between consensus democracy which emphasises the dispersal of power between a range of autonomous institutions and majoritarian democracy which stresses the concentration of government power for the coherent action in the name of the majority. See for example Maddox, G. Australian Democracy in Theory and practice,. Longman Cheshire, Melbourne, 1985. 75

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In the longer term, implied freedoms however, while necessary in the absence of express freedoms, have not been subject to the specific endorsement. In a democracy authority can only come and acceptance will only come from the people. Therefore, in order to give the right to freedom of speech clarity, legitimacy and authority, specific endorsement, derived from a Bill of Rights reflecting the modern understanding of democracy from the people of Australia is required.

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BIBLIOGRAPHY Aroney, N, Freedom of Speech in the Australian Constitution The Centre for Independent Studies , Brisbane, 1998.

Coper, M., and Williams, G. (eds), Power, Parliament and the People, 1997.

Flavin, A., “Can Legislation prohibiting hate speech be justified in light of free speech principles?”, University of New South Wales Law Journal, 18 (1995) 327

Goldsworthy, J. Constitutional Implications and Freedom of Political Speech: A reply to Stephen Donaghue” Monash University Law Review, 23 (1997) 362.

Hanks, P., Constitutional Law in Australia, Butterworths, Sydney, 1996.

Jones, M., “Freedom of Speech Revisited: The Implications of Lange & Levy”, Australian Journal of Human Rights, 4 (1997) 188

Kelly, P., The End of Certainty, Allen and Unwin, Sydney, 1992.

Keyzer, Constitutional Law, Butterworths, Sydney, 1998.

Kirby, J “Constitutional Implications From Representative Democracy” Federal Law Review 23 (1995) 37.

Kirby, M. (1992), “Current Topics: Constitutional Protection for Free Speech,” Australian Law Journal 66 (1992) 775.

Lane, P., An Introduction to the Australian Constitutions, Law Book Company, 1994.

Maddox, G. Australian Democracy in Theory and Practice,. Longman Cheshire, Melbourne, 1985.

13

Mason, A., A Bill of Rights for Australia?”, Australian Bar Review, 5 (1989) 79. Official Record of he Debates of the Australian Federal Convention (Melbourne), 8 February 1898.

Rawles, J., A Theory of Justice Harvard University Press, Massachusetts 1999.

Stone, A., "Freedom of Political Communication and the Common Law”, Federal Law Review, 26 (1998) 219-257. Stone, A., The Limits of Constitutional Text and Structure : Standards of Review and the Freedom of Political Communication, Melbourne University Law Review 23 [1999] p 668-708. Toohey J “A Government of Laws and Not of Men” P Law Review, 4 (1993) 158. Williams, G. Human Rights under the Australian Constitution, Oxford University Press, 1999.

Winterton, Glass, Lee and Thomson, Australian Federal Constitutional Law – Commentary & Materials, LBC, Sydney, 1999.

Zines, L., “A Judicially Created Bill of Rights?”, Sydney Law Review, 16 (1994) 166.

Zines, L., Constitutional Change in the Commonwealth, Cambridge University Press, Cambridge, 1991.

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