Freedom of Political Communication

Freedom of Political Communication

Introduction

Constitutional law in the Commonwealth of Australia consists mostly of that body of doctrine which interprets the Commonwealth Constitution. The Constitution itself is embodied in clause 9 of the Commonwealth of Australia Constitution Act, which was passed by the British Parliament in 1900 after its text had been negotiated in Australian Constitutional Conventions in the 1890s and approved by the voters in each of the Australian colonies. (The British government did, however, insist on one change to the text, to allow a greater range of appeals to the Privy Council in London.) It came into force on 1 January 1901, at which time the Commonwealth of Australia came into being.

The Constitution created a framework of government some of whose main features, and sources of inspiration, were the following:

constitutional monarchy (British and existing colonial models)

federalism (United States model)

parliamentary, or "responsible", government (British and existing colonial models)

distinct textual separation of powers (US model)

direct election to both Houses of Parliament (then a novelty)

requirement of a referendum for amendment of the Constitution (Swiss model)

only very limited guarantees of personal rights (rejection of the US model)

judicial review (US model)

This last feature - the ability of the courts to declare legislation unconstitutional and therefore invalid - is itself the source of the body of constitutional doctrine examined in this article. It has its origin in American experience, where the right of the Supreme Court of the United States to strike down legislation deemed incompatible with the Constitution was first asserted by the Supreme Court itself in the seminal case of Marbury v. Madison in 1803. Although completely foreign to both British and Australian colonial experience, the framers of the Australian Constitution clearly intended that the practice would take hold in Australia, and even expressly adverted to it in the Constitutional text (in section 76). This power of judicial review of legislation for conformity with the Constitution has been exercised almost exclusively by the High Court of Australia, and almost invariably with a Full Bench of all its members.

The Implied Freedom

There is a certain irony that presents itself to anyone seeking to invoke the implied freedom in a critical analysis of this Australian normative deficit. The most obviously relevant body of critical social theoretical work is the now vast international literature related to the Habermasian conception of the public sphere. However, as I have detailed elsewhere, this literature tends to be remarkably Eurocentric in its institutional assumptions. More understandably perhaps, there is a complementary focus on US sources and contexts in the free speech literature. Reconciling these two tendencies is not easy and neither literature speaks directly to the Australian case. For this reason the small comparative international literature on free speech and media policy assumes greater significance.

As Chesterman makes clear, the Australian decisions have never endorsed a conception of positive rights or freedoms that would grant such individual rights of access. The freedom is “inherently negative” and a “test” established in Lange requires that a public interest must be demonstrated to justify any ...