- The constitutional implied freedom of political communication doesn't mean that any speech with political content is protected, or that laws which affect communication about Governmental or political matters are automatically invalid.
Just after an election campaign filled with political speech, it might seem strange to ask what right anyone has to free speech on political matters. Although the First Amendment to the American Constitution provides that American legislatures cannot make any law "abridging the freedom of speech, or of the press", many people don't realise that Australia's Governments are not so constrained.
It is true that the Constitution has an implied freedom of political communication, but that doesn't mean that any speech with political content is protected, or that laws which affect communication about Governmental or political matters are automatically invalid.
The High Court in Lange (a key case on the implied right brought by a former Prime Minister of New Zealand, who sued the ABC for alleged defamatory statements in a Four Corners program) said that laws that affect communication on political matters can still be valid if the law is reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible Government.
Recently the High Court has had to wrestle with how these principles applied to two very different laws. The results in each case show the complexity of this area. The decisions also indicate the current Court's approach of construing the implied freedom of political communication fairly narrowly.
The first case involved the actions of Mr Coleman, a student and activist. Mr Coleman attended a Townsville shopping mall and handed out a pamphlet alleging police corruption. He stood in front of a placard saying "Get to meet your local corrupt type coppers, please take one".
One of the police officers identified in the pamphlet as "slimy lying bastards", Constable Power, approached him and asked for a pamphlet. Mr Coleman refused, and Constable Power told him to stop handing out pamphlets. Mr Coleman then yelled out "this is Constable Brendan Power, a corrupt police officer", at which point he was arrested for using insulting language in public. He was later convicted of that offence, and of other offences arising from the arrest.
The conviction for the use of insulting language was based on Queensland's Vagrants, Gaming and Other Offences Act. Mr Coleman challenged the legality of his conviction on the grounds that the law prevented him from exercising his implied right to political communication. This was not the first time he had run up against police as a result of his political activism. It wasn't even the first time that he had argued the Queensland Act was invalid for breaching the Lange principle. It was however the first time the High Court heard his argument.
The Queensland Attorney General accepted that the practical operation of the section could, in some circumstances, burden communication about Government or political matters; and accordingly, the question for the court was whether the law served a legitimate end that was compatible with the maintenance of the constitutionally prescribed system of representative Government.
Only one judge on the High Court determined that the law was an impermissible burden on political communication. Justice McHugh said:
"Under the constitution, a law that, without qualification, makes it an offence to utter insulting words in or near a public place cannot validly apply to insulting words that are uttered in the course of making statements concerning political or Governmental matters."
Although the appeal was allowed by a four to three majority for various reasons, all of the other judges disagreed with the view of Justice McHugh. All agreed with the Lange test – that even if a law did effectively burden freedom of communication about Government or political matters, it is not invalid if its object is not incompatible with the maintenance of our constitutional system of Government and it is reasonably appropriate and adapted to that object.
The decision also has one further interesting implication. The Court was asked by the Commonwealth and NSW Attorneys-General to modify the Lange test. Currently, if a court determines that a law burdens political speech it then asks whether it is "reasonably appropriate" to achieve a legitimate end. If the answer to that question is "yes", the law will still be valid. The Attorneys-General suggested the test should be "reasonably capable of being seen as appropriate" – that is, the Parliament's judgment on the law's appropriateness should be enough. The High Court rejected this, meaning that the ultimate decision on what is appropriate will remain with the judiciary.
One week later, the High Court handed down its decision on how (if at all) the implied freedom affected the Australian system of election. Under the Electoral Act, a party's name can only appear on a ballot paper if it has at least 500 members, and none of the 500 is a member of another party. These two separate requirements are called the 500 rule and the no overlap rule. The Democratic Labor Party faced deregistration as it refused to provide at least 500 members' names for checking by the Electoral Commission. In response, the DLP argued that the two rules infringed the implied constitutional freedom of political communication because a ballot paper was a form of political communication with voters and deregistration would prevent a party being included on a ballot paper.
The High Court unanimously dismissed the challenge, but individual judges did so for different reasons. The majority said that there was no interference with any implied freedom of political communication because there must be some relevant right or privilege under the general law to be interfered with, and there is no general right to have a party name included on a ballot paper. That right was created by the Act. Others said that even if one accepted that the listing of a party name on the ballot paper is a political communication, the two rules either were not a burden on political communication, or were a burden but they were justified as they were compatible with maintaining the constitutionally prescribed system of representative and responsible Government.
These two decisions remind us that the implied freedom of political communication is not absolute. They might not be the High Court's final word on the matter - it is currently hearing a challenge to the laws restricting advertising by personal injury lawyers, a challenge based in part on the implied freedom.
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