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Federal Constitutional Law
A. Principles of Constitutional Interpretation
1. Does the Commonwealth have power to enact the legislation?
a. The Commonwealth’s power to legislate is contained within s 51 of the Constitution.
i. If the law does not come within one of the heads of power contained in this section, then the Commonwealth law is prima facie invalid, and the Cth is acted ultra vires.
S 51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to….
1. N.B ‘peace order and good government’ have been interpreted as ‘art’, representing the power of the Cth and have no legal meaning and will not act to invalidate nay legislation.
2. N.B ‘subject to the constitution’ although the law may be within power for this section, the law must also not breach any other section of the constitution.
b. To determine whether the law is within power (constitutionally valid), we must:
i. Interpret the relevant constitutional provision, and
1. The HCA in Engineers (1920), rejected two principles of interpretation which had dominated judicial understanding of the Constitution:
a. Implied intergovernmental immunity that state laws should not be construed as applying to federal governments and activities.
b. Reserved state powers that the constitution should be interpreted narrowly to give more power to the states
2. Instead the HCA by joint majority, established a literalist method is most appropriate and the constitution should be interpreted based on ordinary principles of interpretation therefore here, s 51 was given its widest literal meaning.
3. In addition to the Engineers principle, the HCA in Grain Pool declared that
‘constitutional texts are to be construed with all the generality of which the words will permit’ – which aligns with a broadening approach.
4. Alternative general methods of interpretation HCA has not made a clear preference on which method they will take, rather it is dependent on the facts:
a. Legalism/Textualism If the words are fairly clear and unequivocal, the courts will opt for this approach.
i. This calls upon judges to focus on the actual words used, understood in their ordinary or natural meaning.
ii. This approach accords well with well-established common law methods of statutory interpretation.
iii. This was the approach taken in Engineer’s – ‘the meaning of the Constitution must be read naturally in light of the circumstances in which it was made, with knowledge of the common law and statute law which proceeds it’.
b. Originalism An approach that takes the meaning from what the parliament intended them to mean at the time of writing the Constitution.
i. This approach has not taken a hold in Australia – although it can be used to help identify the contemporary approach.
c. Contemporary/Contextualism The Court is entitled to take into account the current meaning of the words based on contemporary values.
i. Approach referred to by the HCA in CIC Insurance and the HCA cases since indicate that contextualism is a principled approach.
ii. Despite its challenges, some of which being what are
contemporary values and who decides them, the approach is still important and is taking hold the principle requires
context to be considered, require close examination of the text and encompass a multifactorial approach.
d. Comparative Arguments
i. Including international law and foreign methods of constitutional interpretation.
ii. This is generally seen only in minority judgments and thus not ratio in any decision.
ii. Example: The Trade and Commerce Power s 51(1) In relation to ‘trade and commerce with other countries and among the States’
1. Interpretation What is Trade and Commerce?
a. W & A McArthur Ltd (1920) HCA The words ‘trade and commerce’
take their ordinary meaning.
i. Therefore, it is not confined to transporting the goods across borders but includes all the commercial arrangements of which transportation is the direct and necessary result negotiations, mutual communings, the bargain, transport and delivery.
b. Example: Airways (1945)
i. A law enabled the government to conduct a transport service trough operating an airline that was authorised to transport (for a profit) passengers and goods between states (interstate).
ii. It was found that s 51(i) did permit the entry of the government into trade and commerce, not just regulating it.
iii. It was also found that trade and commerce did not have to be for profit/commercial and so the transportation of people or goods for whatever reason is enough e.g. people don’t have to be travelling for business purposes.
2. Is the head of power purposive or non-purposive?
a. Does the head of power require that an Act made under that provision be to fulfil a required purpose?
i. E.g. Defence power s 51(vi) ‘…to execute and maintain the laws of the Commonwealth’
b. Yes the Act must not only be characterised (below) as being within the subject matter, but also must be exercised pursuant to that specific purpose.
c. No the Act needs to only fall within the subject matter definition, and the purpose of the legislation is irrelevant.
d. Example: Murphyores v Cth (1976)
i. The Cth government was unable to regulate mining on a QLD island so they regulated the export of the minerals – required a minister to approve it. The purpose behind this was
environmental concerns.
ii. However as per Mason J, ‘it is irrelevant what the motive or purpose behind the law is, it is enough that the law falls within a power’.
iii. Therefore, because the power operated at the point of export it is within the trade and commerce power – this power is non- purposive.
iv. N.b. this shows the significance of non-purposive powers.
e. Note that the Constitutional Commission’s Distribution of Powers Advisory Committee expressed concern that this approach by the
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HCA ‘opens a large area of indirect control for the Cth over matters that do not come within its powers directly to regulate’ and ‘to some this represents a substantial and unacceptable interference with the exercise of State responsibility
iii. Characterise the relevant Act to determine whether the subject matter comes within the head of power in s 51
1. Characterise the legislation to determine its subject matter
a. N.b. If the power is purposive, the purpose of the legislation must also be characterised.
2. Fairfax (1965) ‘The question is one of subject matter determined by
reference to: the rights, duties, powers and privileges which the law changes, regulates or abolishes’
a. Further, in Grain Pool the HCA said that the Court should have regard to the practical and legal operation of a law when determining if it is sufficiently connected to a head of power.
3. Does the Act fall within multiple subject matters?
a. In Fairfax, the HCA rejected that the question was to be answered by reference to the dominant characterisation, instead opting for dual characterisation whereby the Act may fall within multiple subject matters, however, as long as one of those is within a head of power, the act will be valid.
i. This has the effect of expanding Commonwealth power.
ii. Here A taxation law had an ulterior motive to encourage investment in Government bonds by taxing other investments.
The validity was challenged on the grounds that the subject matter was encouraging investment in public securities, as opposed to revenue raising/taxation. However, Court rejected the need to choose a dominant character and as long as it was also to do with taxation, the law was valid.
1. Note as well that the taxation power is non-purposive, so it doesn’t matter about the purpose behind the legislation.
iv. If the Act is not clearly within the head of power, can the incidental power save it?
1. It is a general principle of the common law that ‘where any power or control is expressly granted, there is included in that grant, to the full extent of the capacity of the grantor…every power and every control the denial of which would render the grant itself ineffective’ D’Emden v Pedder (1904) Cth 2. Therefore, through the implied incidental power, every legislative power
carries with it authority to legislate in relation to acts, matters or things the control of which is necessary? to effectuate its main purpose, and therefore carries with it power to make laws governing or affecting many matters that are incidental or ancillary to subject matter directly in power.
a. Note this test has been liberalised ‘it is enough that the provision is appropriate to effectuate the exercise of the power; one is not confined to what is necessary’ Mason J Nationwide News (1992)
i. N.b. the cases studied had the necessary test at the time – so the courts are likely to be even more liberal to the present facts than the precedents.
3. Scenario A: Can the incidental power be extended to regulate intra-state trade?
a. In Burgess (1936), the HCA emphasised the need to maintain the distinction between inter and intra-state trade and commerce.
i. In Latham CJ’s leading judgment ‘although they may be closely associate, the Court’s uniformly held distinction must be SUMMARY
Intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of physical interference with, interstate or foreign air navigation, as this would protect, foster
maintained and therefore a power to deal with one does not involve an incidental power to deal with the other’
ii. The HCA unanimously held that the regulation was invalid – the Cth legislation was to prohibit unlicensed persons from flying within the limits of the Commonwealth.
iii. In Dixon J’s judgment he comments that the distinction may appear artificial – but that it is to be maintained.
b. What about the commingling theory?
i. The theory is that if two things are so comingled (mixed up) then you could not regulate one without regulating the other.
1. In this case, so comingled that you could not regulate interstate commerce without also regulating intrastate commerce.
ii. This was put to the court in Burgess but was rejected in Latham CJ’s judgment in relation to the case at hand.
1. However, he expressed that ‘if you can show that by evidence, not just theory, that the inter and intra state are indeed so comingled that it is impossible to regulate one without one or certain aspects of the other then it will be allowed.
a. Note that in this case in 1936 air travel was not common and therefore it was possible to have different regulations – this exact case would likely be decided differently today.
iii. In Airlines (No. 2) (1965), the Court was faced with the same legislation used in Burgees to regulate intra-state air travel through issuing licenses.
1. Importantly, the regulation required regard to be had to “safety, regularity and efficiency of air navigation and to no other matters”
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B. Inconsistency
1. Under s 109, when a law of a state is inconsistent with the law of the Commonwealth, the Commonwealth law shall prevail and the former shall be invalid to the extent of the inconsistency.
a. N.b. invalid the law continues to exist but is inoperative. If the Cth is repealed, or for any other reason they are no longer inconsistent then the State law becomes operative.
b. N.b. Extent of inconsistency only part of the state law which is inconsistent with Cth law is invalid – reading down and severance applies.
2. Note that s 109 only becomes applicable if both the Commonwealth and State laws are otherwise valid – therefore before considering whether they are inconsistent, it must be first established that the Cth law is within power (the state law must also not be directly prohibited under the Constitution)
N.b. air navigation is much more advanced by 1965 and now there is that degree of comingling between inter and intra state air travel – that’s why there is two different decisions to the same thing.
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3. Is there a direct inconsistency?
a. Is there an impossibility of obedience? Or
i. The Cth and State laws must be impossible to comply with both laws simultaneously i.e.
one requires you to do something and the other forbids you – no matter what you do, you are unable to not be in a contravention of one.
ii. Example: R v Licensing Court of Brisbane; Ex Parte Daniell (1920)
1. A QLD state act imposed a referendum to be held at the same time as the Cth election. The Cth law forbade a State referendum to be held simultaneously.
Therefore, to not vote in the State would be contravention of the State Act but it would also be in contravention of the Cth act – and vice versa.
b. Is there a denial of rights?
i. Where one law removes, alters or detracts from a right, immunity or privilege conferred by the other law then the two are inconsistent.
1. N.b. It is always the Cth law that prevails – even if it is the one removing the right conferred by the State.
ii. Example: Clyde Engineering Co. Ltd (1926)
1. Cth award had a 48 working hour week but state award had 44. Employer’s right to a full working week for providing full pay was taken away by State law.
Employee’s right to full pay for less hours was taken away by Cth. Therefore, Cth law prevails.
a. N.b. no impossibility because the employer is not prevented from providing full pay for less hours, and employee is not prevented from working longer hours.
iii. Example: Colvin v Bradley (1943)
1. Cth award allowed employers to employ women in the industry but state award prohibited hiring woman for a certain job in the industry. The employer’s right to hire women and the right of women to be employed conferred from the Cth award is being taken away by the State award. Therefore, denial of rights, Cth award prevails.
a. N.b. the impossibility because the employers don’t have to hire women and the women don’t’ have to work.
4. If not, is there an indirect inconsistency? i.e. does the Commonwealth legislation cover the field?
a. Characterise the subject matter covered by the Cth legislation
i. There are both broad and narrow approaches to this question with little HCA authority as to which will be taken.
ii. In Noarlunga Meat, the majority found………
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C. External Affairs
1. Under s 51, The parliament shall, subject to this Constitution, have power to make laws with respect to external affairs (xxix).
2. The external affairs power is central to Australia’s ability to implement its international obligations. The GG, exercising the prerogative power of the Crown, may enter treaties on any subject matter, even those outside the legislative powers in s 51. However, the treaties do not form part of Australian law until and unless they are incorporated into law through statute.
If both b and c are answered affirmatively there is an inconsistency
a. This approach is known as transformation theory where the international law is ‘transformed’ into a domestic law (See e.g. Mason CJ and Deane in Teoh).
3. Central Question Whether the Commonwealth can rely on the s 51(xxix) power to implement treaties, conventions and other such international instruments that it enters, where the subject-matter of the treaty is not otherwise within the Commonwealth’s legislative power.
4. What is the requisite international or external affairs element to enable the external affairs power to be invoked?
5. To what extent can this power be used to extend the Cth power beyond the other limitations contained in the Constitution?
a. Scope of the power
i. In Tasmanian Dams Case, Murphy J explained the following characterisations that fall within the external affairs power:
1. (a) implements an international law?
2. (b) implements any treaty or convention whether general (multilateral) or particular?
3. (c)implements any recommendation or request of the United Nations
organisation or subsidiary organisations such as the World Health Organisation, the UNESCO, the International Labour Organisation etc?
4. (d) fosters (or inhibits) relations between Australia or political entities, bodies or persons within Australia and other nation States, entities or groups or persons external to Australia?
5. (e) deals with circumstances or things outside Australia?
6. (f) deals with circumstances or things inside Australia of international concern?
b. Geographical externality
i. Principle that emerged from Sharkey’s case was that the relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matter which fall directly within the subject of external affairs (Latham CJ).
1. Allowed for the prohibition of conduct within Australia which affects our relations with other countries.
2. Other examples of laws are extradition laws, judicial notice of foreign judgments.
3. Note that Zines has noted that laws need not concern friendly relations with other countries, so long as they affect relations in some way. This was supported by Mason J in Koowarta who also endorsed an extension of the Sharkey principle to concern relations with international persons such as the United Nations.
ii. Therefore, based on the Sharkey principle it is clear that law relation to conduct that affect our international relations are directly within the external affairs power.
iii. But what about mere geographical externality? Does there need to be a nexus?
1. Traditional comments from Barwick in Sea and Submerged Lands Case commented that………..
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D. Corporations
1. Under s 51, The parliament shall, subject to this Constitution, have power to make laws with respect to (xx) foreign corporations, and trading or financial corporations formed within the limits of the
Commonwealth.
2. Introduction
a. Early cases adopted a strict restricted view of this power which was influenced by the reserve state powers doctrine. This can be seen in the case of Huddart Parker 1909 where it was held to only empower the Commonwealth to regulate corporations as an entity. That is, the nature of the entity but not the activities it was engaged in.
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b. The power laid fairly dormant for over 60 years because if the Commonwealth had control over the activities of constitutional corporations then they could regulate intrastate state (since the bulk of intrastate trade passed through corporations) and hence would break the trade and commerce divide that they tried to hold on to.
c. Revival of the Power
i. In Strickland v Rocla Concrete Pipes 1971, there was a revival of the power by expanding it and overruling Huddart Parker. The Court held that the corporations power allows the Commonwealth to regulate the trading activities of trading corporations – including intrastate trading activities.
1. The Court held that as a matter of law, the trading activities of trading
corporations could be regulated. This is because the fact that intrastate activities are regulated by State laws should not prevent the Commonwealth from
regulating the same activities as long as it is within the Commonwealth’s corporations power.
a. Note that this did not say that all activities of all constitutional corporations could be regulated.
2. Here regulation requiring companies to provide information on trading agreements that were restrictive of trade.
3. On another point the provisions were invalid because they covered both constitutional and non-constitutional corporations.
3. The scope of the power traditional/historical a. Narrow v broad view
i. The case of Strickland opened up two views for the scope of the power:
1. Narrow
a. For the law to be valid, there must be a sufficient connection to the trading activities of trading corporations or the financial activities of financial corporations.
b. Zines has noted the logical difficulty with this approach foreign activities of foreign corporations?
2. Broad
a. The Commonwealth has plenary power to regulate any activity of a constitutional corporation – not just trading activities of trading corporations – so long as it is a constitutional corporation.
ii. The narrow view was adopted in Strickland however ultimately the broad view emerged as victorious in the Work Choices Case.
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E. Freedom of Interstate Trade
1. Under s 92 of the Constitution – trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
2. In relation to “trade and commerce”, bear in mind that these words were to be given their ordinary meaning as understood by business people: WA McArthur v Queensland (1920) 28 CLR 530.
3. Traditional Approach
a. Following the Engineers’ case whereby interpretation of the constitution can only be made by the text and structure of the constitution itself and next by reference to extraneous material – two extreme views emerged as to what ‘absolutely free’ means:
i. S 92 was a constitutional guarantee of laissez-faire, capitalist economy ii. S 92 was concerned only with prohibiting fiscal burdens on interstate trade.
b. The Bank Nationalisation Case from 1949 provides an appreciation of the earlier debate.
i. Facts: The government introduced an act which prohibited private banking. Banks argued that s 92 guaranteed a free market economy, whereas the Commonwealth argued that s 92 was only concerned with prohibiting fiscal burdens on States and had nothing to do with banking.
ii. The Privy Council affirmed the High Court’s position. Interstate banking transactions under the law were thus not "absolutely free" and hence in violation of Section 92 of the
Constitution.
iii. The PC adopted the banks’ argument with the only restriction on laissez-faire capitalism being that some government regulation of interstate trade, which would not threaten free trade, would of course be required.
1. ‘Their lordships do not intend to say that in no circumstances could the creation of a monopoly by the state be justified. Every case is to be justified on its own facts. It might be that sometimes a state monopoly may be the only practical and
reasonable manner of regulation.’
c. The court followed the free trade principle for a number of years following the Bank
Nationalisation case, however in the 1970s and 1980s there was a movement away from this principle which led to the state of utter confusion, best epitomised in Uebergang.
i. All of the judges had various positions and as a result the case ended without determination
1. Barwick CJ s 92 was a constitutional guarantee of free market economy 2. Gibbs & Wilson JJ Cth had to show that by setting up the AWB was the only
practical and reasonable course open to them. This test is not likely to be met in anything but exceptional circumstances.
3. Aicken J s 92 was a constitutional guarantee of free market economy but may allow a monopoly in a rare and exceptional case
4. Murphy J s 92 merely prohibits fiscal burdens on interstate trade
5. Stephen & Mason s 92 permits regulation that is no more restrictive than reasonable in the circumstances due regard being had to the public interest.
4. The current legal position
1. Is there discrimination between inter and intrastate trade and commerce?...
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F. Taxation/Grants TAXATION
1. Under s 51(ii), The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… taxation; but so as not to
discriminate between States or parts of States
2. Therefore, the Commonwealth is able to make laws with respect to taxation but:
a. The law must not discrimination between States or parts of States b. The laws imposing taxation shall not originate in the senate (s 53)
c. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation (s 54)
d. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect (s 55).
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i. This provision prevents the ‘tacking’ of other matters onto laws imposing taxation. If this occurs, all the non-taxing provisions will be rendered inoperative.
ii. However if the imposition of tax was introduced to the statute by an amendment – as a matter of practicality rather than literal constitutional interpretation, the amending instrument will be struck down (Air Caledonie 1988).
3. Is the law imposing a tax? OR
a. If the law is imposing a tax, then remember it will bring in the s 55 restriction which means that its other non-taxing provisions will be held inoperative.
b. A law may still be valid in that it is ‘with respect to taxation’(See below) but not imposing a tax and therefore not making the other provisions inoperative.
i. If it is not imposing a tax then the other limitations still apply.
c. In Permanent Trustee Australia, matters which are ‘reasonably incidental’ to the imposition of taxation will count e.g. provisions for the assessment, collection and recovery of tax.
1. However, as contrasted in Re Dymond, provisions for the administration and machinery, appointment and powers and duties of a commission of taxation, making of returns and assessments, determination of questions of liability do not deal with the imposition of tax but can still be ‘with respect to’ tax.
d. What is tax?
i. Traditional definition…
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e. Service does not relate to person who is paying the levy i. Northern Suburbs Trust
1. A Cth Act required employers to spend money to upskill their workers and if they didn’t do this/there was a shortfall in the amount spent then they had to pay that amount to the Cth. Was this a tax or a fee for services?
a. Note that this is factually distinguished from Lutton because the money didn’t go back to companies or workers but it went to the Cth to fund their own schemes to upskill workers.
2. The Court maintained that the service must benefit the person paying the tax.
Although the money did go into training services, it was too remote to draw a connection – the employers who paid the fee were not provided with
particularised training services for their employees.
3. Therefore, in accordance with the principles from Air Caledonie, the fee was not a charge exacted for particular identified services provided or rendered
individually to the person required to make the payment.
4. Is the law within the scope of the power under s 51(ii) i.e. is it a law ‘with respect to’ taxation?
a. Consideration should be given to the historical approach established in R v Barger 1908 where a law requiring a tax to be paid by an employer to the Cth if they did not pay the award rates was held invalid because i) it didn’t fall within s5(ii) because the term taxation should be read down pursuant to reserved state powers, and (ii) the dominant characterisation test would fall with respect to industrial relations and not to taxation. The reserved state powers reasoning was discredited in Engineers, and the characterisation was discredited in Fairfax.
b. What if the law has dual or multiple characterisations?
i. The scope of the power is currently established by Fairfax v FCT 1965, whereby a law can be characterised with respect to more than one head of power – so long as one was within the Commonwealth head of power, the law would be valid.
1. Here the government incentivised investing in government bonds by exempting income earned in superfunds form tax if a certain amount was in the bonds.
2. Kitto J leading judgment set out the principles that a law is characterised by looking to the rights, duties, powers and privileges which it changes, regulates or abolishes – and so long as one characterisation is with respect to taxation, this is enough,
3. Here just because it deters taxation (an exemption) does mean it ceases to be with respect to tax.
ii. Note that there was a dissenting judgment by Menzies J, Barwick and Winderyer in Fairfax that in some circumstances, they would be willing to hold that such a tax imposed for the purposes of regulating, deterring, or encouraging other conduct, may be held not to be with respect to taxation – however this dissent was expressly repudiated by the HCA in the Second Fridge Benefits Case 1987 and the Kitto J judgment was unreservedly adopted.
c. Does it matter what the purpose of the tax is?
i. In Northern Suburbs Trust, as discussed above the money was not a fee for services because the money exacted went into a general fund to pay for government expenditure on its own schemes of retraining and was not directed to providing resources to employers. Therefore, the law could be characterised as taxation.
1. With respect to scope of the power, since taxation was a non-purposive power, a law imposing a tax, for whatever purpose, is a law with respect to taxation.
2. It was irrelevant that the law was related to social policy/productivity rather than revenue-raising – because the power is non-purposive.
G. The Defence Power
1. Under s 51(vi) the Parliament has power to make laws with respect to the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.
a. Note that the defence power is a purposive power and on a literal reading is limited to laws for the naval and military defence (external aggression) however note that the power has been interpreted quite broadly so as to allow the Commonwealth to have control of the forces to execute and maintain the laws of the Commonwealth more broadly e.g. when responding to emergencies.
b. Note that because the power is purposive, its ambit is thus elastic and its variable nature corresponds to the intensity of a particular state of affairs relevant to defence and natural security. As national security is increasingly threatened, the scope of the power increases. As the national emergency recedes, the scope of the power similarly contracts
2. The test proposed by Griffith CJ in Farey v Burvett is that can it be shown that the measure conduces, or is reasonably capable of being regarded as conducing to the efficiency of the forces of the empire? Or is it so remote that one cannot reasonably regarded as affecting the other.
a. This case involved a Commonwealth statute that put a price ceiling on bread – matters which in normal circumstances would not come under the defence power.
b. However, it being a time of war, the ambit of the defence power could be expanded to cover such things.
c. Here, placing a price ceiling on bread to encourage the export to the UK was conducive (or at least reasonably capable of being regarded as conducive) to the efficiency of the forces of the empire.
d. The judgment of Isaacs J commented that determine what is reasonably capable is at the discretion of the judgment who alone has the ‘information, knowledge and experience to make such an assessment’.
3. Isaacs J in Farey v Burvett Once the court is satisfied that there is a real possibility of war, then any legislation, ‘conceivably even incidentally related to defence’ will be a valid exercise of the defence power.
4.
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5. This test was further clarified by Justice Dixon in Stenhouse v Colement 1944 whereby the determine if it falls within the defence power there must be:
a. An examination of the purpose of the Act, and
i. In cases of doubt the court may inform itself by judicial notice
b. The purpose ‘must be collected from the instrument in question, the facts to which it applies and the circumstances which called it forth’.
6. The doctrine in the communist party case………..
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Implied Freedom of Political Communication
1. Under s 7, The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
2. Under s 42, The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be
determined, whenever necessary, in the following manner…
3. Historical
a. In 1992, the HCA in Nationwide News held that the Constitution provided impliedly for freedom of political communication.
i. It did this through the words ‘chosen by the people’ as implying representative democracy.
ii. A provision that a person shall not writing words calculated ‘to bring a member of the Commission into disrepute’ was inconsistent with the principle of representative government which was incorporated into the Constitution.
iii. The majority, plus Mason CJ, agreed that the freedom of communication on political and public matters that representative government requires not merely between
representatives and electors, but also free communication on such matters between all persons, groups and other bodies in the community.
b. Also in 1992 a subsequent case of ACT v Commonwealth, Mason and McHugh who did not previously also accepted the implication.
i. The legislation excluded the use of radio and television during election periods as a medium for political campaigning and for dissemination of political information.
c. The majority of Mason CJ, Deane, Toohey & Gaudron JJ held that these provisions where wholly invalid on the ground that they infringed freedom of political communication which was a necessary element of a system of representative government implied in the Constitution.
i. “The system has a necessary incident, the rights of persons to communicate and rely on matters of political and public affairs.’
ii. Brennan J also agreed with the implication – however held in this instance that the legislation was not inconsistent with it.
d. Note that the legislation in ACTV struck at the heart of freedom as it was a prohibition on communication of political matters – this wasn’t so express in Nationwide News.
e. However, it is important to appreciate that the judges who supported the existence of the implication did agree that this was not absolute and was necessarily limited by other pressing social needs and interests.
i. The court turned to the law in s 92 as whether the restriction was reasonably necessary, or appropriate and adapted, to achieving the competing object.
ii. Mason CJ ‘if the restriction imposes the burden on free communication that is
disproportionate to the attainment of the competing public interest, then the existence
of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication
f. It is this limitation that has been picked up on and made stronger in the current test.
4. Current Legal Position
a. The Court in Lang 1997 reconsidered its position from Theophanous 1994
i. Here the court held that the freedom of political communication secured an implied constitutional immunity from prosecution (against defamation claims from a minister) and the majority held that the implied freedom creates an immunity from State and
Commonwealth laws to enable people to say anything related to political matters.
b. By reconsidering, it was determined that the implied freedom was not a sword which provided citizens an immunity from laws burdening communication, but was instead a shield from legislation which burdened communication, and was not appropriate and adapted to serve a legitimate end.
i. In Lange, a similar defamation cause arose, and the ABC attempted to use the implied immunity as established in Theophanous.
ii. However, this immunity was unanimously rejected holding it could not be used as an immunity but could be used only to strike down laws in breach of it.
1. Therefore, there is no constitutional defence to defamation, but the defamation law must be such that they are compatible with the freedom. That is, the laws give enough protection to reputation without burdening the ability of people to discuss political matters.
c. The Court had to consider what kind of government the law creates ‘the right of freedom of political communication does not come from a free-flowing concept of democracy, but the precise form of representative government established by the text of the Constitution from s 7, 24 and 128’
i. The people must directly choose their representatives – this can only be understood by reference to the system of representative and responsible government which the constitution gives effect to.
ii. Therefore, freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the constitution creates.
5. Current Legal Test
a. The test was established in Lang:
i. Does the law effectively burden freedom of communication about government or political matters, either in its terms, operation or effect?
1. In Lang, the defamation law was held to burden political communication.
ii. If so, is the law able to be regarded as reasonably appropriate and adapted to serve a legitimate end, the fulfillment of which in a manner which is compatible with the
maintenance of the constitutionally prescribed system of representative and responsible government?
1. In Lang, the law reasonably appropriate and adapted to a legitimate end because it was protecting a person’s reputation, and it allows the defence of truth and qualified privilege for political commentary – therefore it’s valid.
iii. Note the change in red was an adaption of the second limb of the test that was modified in Coleman v Power 2004 by McHugh J.
