On Wednesday, the High Court ruled on two cases that involved questions about the extent of free speech in Australia. These cases are of interest because they provide an indication of the situations where the High Court might permit the government to interfere with free speech in a way the US Supreme Court might not. The first case involved the issue of whether the Adelaide council has the power to pass by-laws preventing preaching in the streets. The second, and perhaps more controversial case, involved the issue of whether the federal government has the power to criminalise sending offensive letters through the post. The important question answered was whether each of these laws unduly restrict the freedom of political communication implied by the constitution.
Before looking at the arguments in each of these cases, it’s important to consider the nature of the freedom as the law stands in Australia. The freedom is constructed out of sections 7 and 24 of the constitution which make reference to parliamentarians being ‘directly chosen’. The High Court has historically interpreted this as being part of a framework of ‘responsible government’. It has interpreted the phrase to mean the government had a positive duty to provide a mechanism for the choice (i.e. elections) as well as a duty to not interfere with that choice. The court interpreted the choice in a broad way by inferring the inclusion the pragmatic element of freedom of political communication, as a practical requirement of responsible government and consistent with the democratic expectations. As the government is bound by the constitution it cannot legislatively interfere with this political communication (at least to any extent that it will practically interfere with the people’s choice of representation). This makes it a limited pragmatic and public freedom in contrast to the ‘absolute’ formal or private right associated with free speech in the United States.
This can be seen in the way the High Court formulates the legal test:
- Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?
- If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?
It’s important to note that these questions must focus on the law itself, and not the actions of the individual in the particular cases. The facts of the particular case are at most a convenient illustration of the issue. In both these cases it was conceded that the laws did effectively burden freedom of communication, and thus the first question was answered positively. The arguments in the cases focused on how the court dealt with the second questions.
Common Law Right
Judgements in these cases also makes reference to the common law right of free speech. This is a related but separate right to the constitutional freedom. Although this right is much broader, having the generalised scope of the free speech right in the US, as it is part of common law it is something that parliament has the power to override. It’s significance is that when interpreting legislation, the courts will presume that parliament did not intend to infringe the common law right unless that intent is sufficiently clear in the legislation. Given the capacity of parliament to override it with properly drafted legislation it is not as politically significant or interesting as the constitutional freedom. It forces the politicians to clearly infringe the right in the legislation they pass and so in a sense provides some political protections against underhanded infringement, but generally interest in the common law right is limited to those who draft and interpret legislation.
The first case involved two brothers who felt they had the right to preach their faith in a public mall in Adelaide without having to get authorisation from the council. The by-law was “for the management of roads” and included:
Activities Requiring Permission
No person shall without permission on any road:
2.3 Preaching and Canvassing
preach, canvass, harangue, tout for business or conduct any survey or opinion poll provided that this restriction shall not apply to [a] designated area as resolved by the Council known as a ‘Speakers Corner’ and any survey or opinion poll conducted by or with the authority of a candidate during the course of a Federal, State or Local Government Election or during the course and for the purpose of a Referendum;
There are a number of key points in the law to note. Firstly, the purpose of the law is to manage the roads under its jurisdiction. In it’s judgement, the High Court accepted this was an important and legitimate function of the law, and it noted that proper management of the roads could even improve the capacity to communicate via efficient transportation. Secondly there are clear exceptions in place for dealing with communication explicitly to do with elections. Finally there is the possibility to gain permission for exceptions not identify directly in the law itself. The majority of the court concluded that these elements made the law reasonable and thus concluded it was valid under the constitution.
Heydon J, the dissenter, preferred to focus on the common law right. He used this to interpret the legislation empowering the by-laws as being worded too broadly include a power to infringe the right of free speech. This meant he considered the council lacked such a power and hence the section of the by-law was invalid as it exceeded the power of the council.
The second case involve a man sending offensive letters to families of soldiers who had died in Afghanistan. The Criminal Code (Commonwealth) creates an office in section 471.12 covering where a person uses the postal service:
… in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
For this offence, the code also requires the conduct be reckless. This means a person’s offensive use of the postal service will only constitute an offence if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
This can be simplified into three elements that must be met for the use of the postal service to be an offence:
- a ‘reasonable person’ would consider the use offensive;
- the sender was aware of the risk that a reasonable person might find it offensive; and
- given this, the use was (objectively) unjustifiable.
The issues in this case line up differently than the first and for this reason it is more controversial. Firstly, the judgements identified the key purpose of the law as defending the individuals from unwanted intrusion in their private homes and businesses. Protection of individuals from the speech of others can be contrasted to manage a public space for a public purpose. Secondly the nature of the communication also shifted from communication in a public space to communication between private individuals. Arguably private communication is more important to the process of political communication and holding the government of the day responsible. These factors both suggest that the law in this case is less reasonable than the first case.
The High Court was split on the matter, ultimately leaving the decision of the Supreme Court in place and the law intact. Crennan, Kiefel and Bell JJ issued a joint judgement upholding the law as valid. They felt that there was sufficient flexibility within the ‘reasonable person’ test and the ‘unjustifiable’ test to protect those using the post for political communication. They felt juries would see the vast majority of political communication as either not sufficiently offensive to a reasonable person particularly given the importance of political communication, or if it was considered offensive that the political nature would justify the risk. Their conclusion was that the law was sufficiently adapted for its purpose to be compatible with the constitution.
Arguing the law was invalid, French CJ and Hayne J both argued that preventing offence was not a legitimate purpose of the law, one completely incompatible with the constitutions democratic framework, and hence the question of reasonableness did not even arise. Their concern was that in the legislation the term ‘offence’ was broad and the definition of ‘postal service’ was vague that it would cover an excessive amount of political communication, in particular communication in the form of robust debate.
In his final judgement before retiring, Heydon J briefly agreed with French CJ and Hayne J and then went on to sympathise with the families, quote some poetry, discuss how we shouldn’t have such a constitutional freedom in the first place and ultimately conclude:
Those who drafted the Constitution, those who secured legislative approval of it by each colonial legislature, and the people who approved it by their ballots would each say, if they could examine the authorities on the implied freedom of communication: “Non haec in foedera veni“. Yet in compacts other than constitutions, clearness and obviousness are common conditions precedent to the implication of terms.
Close examination of the implied freedom of political communication would involve analysis of these issues. That examination may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing. That close examination cannot usefully take place until some litigant whose interests are damaged by the implied freedom argues in this Court, with leave if necessary, that the relevant authorities should be overruled. No endeavour of that kind was made in these appeals. Hence these appeals offered no occasion for close examination of the relevant questions. On the existing law, there is no alternative but to make the orders proposed by Hayne J – a result which, some may think, demonstrates how flawed that law is.
This perhaps suggests that the foundations of the constitutional freedom remain uncertain even while there is controversy over it’s application. Perhaps its just a call for one of the other judges to take on the role of the “Great Dissenter“.
The two cases where the constitutional freedom developed both involved laws directed at the political nature of the communication. Nationwide News v Wills involved a law that prevented bringing the Australian Industrial Relations Commission into disrepute. Australian Capital Television v The Commonwealth involved a law that heavily regulated the ability of political advertisements during election periods. The fact that both laws were directly regulating communication about political offices proved significant. In both cases the High Court held the laws were invalid because they were incompatible with the constitution.
Later in Lange v ABC, the High Court revised the limits of common law defamation to be consistent with the freedom of political communication identified in earlier cases. It was in this case that the court developed the second ‘reasonability’ part of the test used in later cases. The court held the general restraint on speech by defamation law was acceptable however extended the qualified privilege defence to those communicating defamatory political imputations. The defence required circumstantial and procedural hurdles be met in order to invoke the defence. Behaving as a responsible journalist would provide a shield against liability for defamation even if the facts turned out to be wrong, while shamelessly printing any old rumour could result in damages. While defamation law has since been reformed by legislation, the balance found in the modified defence provides an important example of the way the court views the issue.
These new cases can be seen as clarifying limits of the freedom established in previous cases. The laws in these cases involved imposed limits on communication generally, whether by mode (in the street) or content (offensive nature). Thus, like the law of defamation, they are capable of reasonably balancing their legislative purpose with the democratic nature of the constitution. The judicial split in the letters case indicates that the Commonwealth law has pushed limits of what is acceptable.
Beyond Streets and Letters
Other than the ‘reasonability’ test applied in the cases there remains no clear indication on the limits of the constitutional freedom in contexts. Any limits will need to be determined on a case by case basis as the matters reach the High Court.
One point to make is that the offence regarding offensive use of the postal service is essentially identical to an offence covering the use of a the use of phones or the internet (section 474.14 of the Criminal Code). The internet does provide functionally different modes of communication to the postal service, however such factors could easily be considered within the reasonable person or justifiability tests. I don’t see this as significantly changing the arguments either for against the validity of the law. So I wouldn’t count on freedom of political communication to protect people in Australia that might act offensively on the internet.
There is also an ongoing debate over whether the political freedom should extend beyond communication to include association. There is a case the court is currently considering so there may be a resolution to that debate soon. Hayne J (at ) already made a reference to political association in the street preachers case:
Preventing the obstruction of roads is conducive to the maintenance of roads as a means of travel, interaction and association (including political interaction and association) among the people.
I wouldn’t be surprised if the capacity to organise candidates to be chosen from is seen as an important part of representatives being ‘directly chosen’ and hence freedom of association would be seen as an important democratic element. However I suspect that any freedom of political association will be similarly qualified to the freedom of political communication, and that ultimately it won’t be useful in invalidating well conceived laws. It will be interesting to see how the arguments pan out and how the court rules.
I’m as divided on the letters issue as the court. I don’t have a problem with the specific conduct in either case being sanctioned by the law. I think the law regulating the use of roads is perfectly reasonable, particularly with the express political exceptions included. I also think the law has a place in providing protection in situations where people are known to be especially emotionally vulnerable. There is no place in a lawful society for the callous exploitation of vulnerable people, whether for laughs or politics.
However, I do share the concern about the breadth of the postal service offence. The capacity of the reasonable person and justifiability elements to protect political communication relies on proper determination of fact. Mistakes in determination of fact are not as easy to appeal as mistakes in law. Review of decisions by higher courts is not likely to be effective in ensuring its application remains consistent with the constitution’s democratic framework. All it would take would be an over-zealous prosecutor and a jury influenced by a shift in the political winds and the law could become a significant burden on political communication. Going back a few decades, how difficult would it have been to make a convincing argument that posting same-sex marriage propaganda incorporating graphic depictions of homosexuals being affectionate and raising children constitutes offensive material?
Constructing the law to provide protection without excessively intruding on freedoms is a significant challenge. One step could be to specify a set of key factors that need to be considered in assessing whether the conduct was ‘offensive’ or ‘justifiable’. The qualified privilege defences that form part of modern defamation laws are an example of such an approach. It would still be necessary to avoid any hard definitions to avoid people exploiting them as a ‘legal loophole’.
Ultimately I think the Commonwealth should have drafted the legislation better and the protection of political communication is important enough that the law should have been considered invalid. I can also see the point that Heydon J was making about the very existence of such a constructed constitutional freedom, yet I think if it remains properly bound to a substantive notion of democratic ‘choice’ it will continue to serve us well.