LAW 2501 Lecture Notes - Lecture 10: Labor Council Of New South Wales, Plenary Power, Responsible Government
23 May 2018
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IMPLIED FREEDOM OF POLITICAL COMMUNICATION
PQ SUMMARY- the Lange/ McCloy Test
1. Does the law effectively burden the freedom in its terms, operation or effect?
2. Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the
constitutionally prescribed system of representative government?
3. Is the law reasonably appropriate and adapted to its legitimate object in a manner that is compatible with the
maintenance of the constitutionally prescribed system of representative and responsible government?
a. Is the law suitable to achieve its purpose?
b. Is the law necessary to achieve its purpose?
c. Is the law adequate in its balance?
THEORETICAL BASIS/ DEVELOPMENT
• Must be a way for C* to protect freedom of speech
• C* exists against a backdrop of fundamental principles- responsible govt, democracy, freedom
• There principles give rise to rights- incl freedom from slavery, sex discrimination, cruel and unusual
punishment, freedom of movement, freedom of speech and communication
Sections of the constitution creating system of representative and responsible government from which implied
freedom arises
• s 7 The Senate shall be composed of senators for each State, directly chosen by the people of the State…
• s 24 The House of Representatives shall be composed of members directly chosen by the people of the
Commonwealth...
• s 1: Legislative power vested in the Parliament
• s 6: At least one session of Parliament per year
• s 62: Executive Council to advise Governor-General on the exercise of executive powers
• s 64: Ministers to sit in Parliament and to be members of Executive Council
• s 83: No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by
law
• s 128: Amendment of the Constitution
laws held to breach the freedom
• law restricting political advertising during election campaigns ACTV - invalid
• prohibition on going onto a duck hunting area during hunting season Levy – not invalid. Burden on political
communication but appropriate and adapted to legitimate end
• law prohibiting criticism of Cth govt official Nationwide News –invalid
• law prohibiting anyone except registered voters donating to political parties Unions v NSW - invalid
• law prohibiting consorting between convicted criminals Tajjour - valid
• law prohibiting property developers donating to political parties McCloy - valid
• prohibition on sending offensive material in post Monis - valid
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PQ PROCESS
STEP 1: determine if Cth/ state law is valid
1. Cth needs to be supported by a head of power in C* (corporations power, external affairs power, defence
power, tax power)
2. State- plenary power s 5 C* Act (SA)
SETP 2: set up the issue
1. Law will be valid unless a limit applies to the power. one such limit is the implied freedom of political
communication Lange
2. Because the implied freedom is not an individual right, client does not have a right to political
communication. Rather, will look at the law (client ) is charged under to determine if the legislation breaches
the implied freedom rendering it invalid. If it is invalid (client) doesn’t have to follow it
STEP 3: reason for doctrine
• Nationwide News and ACTV in 1992 established that the Au C* has an implied freedom of political
communication because
o Doctrine of representative and responsible government underlies the constitution,
▪ representative government: see ss 7, 24, 1, 8, 13, 25, 28, 30.
▪ responsible government: ss 6, 49, 61, 62, 64, 83.
o the C* exists against a backdrop of fundamental principles of democracy, freedom, responsible govt-
these give rise to rights, incl the freedom of speech and communication
o ultimately, the implied freedom is an implication on an implication
STEP 4: Lange, in 1997, reaffirmed the implied freedom
• narrowed it to an implication based on system of representative govt set out by constitutional text
o ‘Freedom of communication on matters of government and politics is an indispensable incident of that
system of representative government which the Constitution creates by directing that the members of
the house of Representatives shall be “directly chosen by the people” of the Commonwealth and the States,
respectively.’
STEP 5: Lange When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the
requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be
answered before the validity of the law can be determined.
STEP 6: Q1 (the first limb of Lange)
Does the law effectively burden the freedom of communication about government or political matters either in its
terms, operation, or effect?
FACT – something which in some way affects political communication
• Burden can be minor- eg Levy law prohibited entering a duck hunting zone during duck hunting season
• What is political communication?- No authoritative statement defining it
o Key idea: what do people need in order to make the sort of ‘choice’ of representative required by the
constitution?
o not confined to election periods
o Communication between government and people
→ Nationwide News: to cast an informed vote, need to know identity of candidates, their edu and
background and content of proposed laws- any factual or theoretical circumstance relevant to
choosing what is in the nations/ their localities best interests
→ ACTV: communication in the exercise of freedom is not one-way traffic- electorate needs to
have a method of communicating views to representative and rep needs explain and account for
decisions/ actions and inform the people so they can make informed judgements on the matters
o Communication amongst the people (incl those who can’t vote (Unions v NSW)
▪ Private or public conversations
▪ With family, neighbour, stranger
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▪ ACTV: method for citizen to communicate views on a range of matters calling for change or political
action where there has been none – method of criticizing govt
o Extends to communication about State, Territory and local government matters
▪ Mason CJ in ACTV
▪ French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW
o DONATIONS TO POLITICAL PARTIES
▪ Arguably, laws limiting donation to political parties stops people being able to support political parties/
being able to voice their opinions and burdens political communication
→ HOWEVER, IN McCloy- HC held that the act of donation itself is not a political act or political
communication. But, because such a law reduces the amount of money parties have, and
therefore the amount of political communication in which those parties can engage, it breaches
the implied freedom
o PROTESTS- inherently political activity. Defying the status quo, making view public
▪ Brown:
▪ Levy Includes expressive conduct in protests
→ communication not limited to ‘verbal utterances’ includes signs, symbols, gestures, images-
perceived by all and used to communicate info, ideas and opinions
o Protects unpeaceful conduct/ insults
▪ Protects more than rational argument and peaceful conduct that conveys political/ governmental
messages- it protects false, emotional communications as well as true, reasoned and detached
communications McHugh J in Levy,
▪ Unqualified prohibition on the utterance of insulting words in a public place breaches freedom
McHugh in Coleman
▪ From its earliest history, Au politics has regularly included insult and emotion, calumny and invective,
in its armoury of persuasion Coleman Kirby J- Can be yelling, rude, offensive
o Communication about judiciary (to an extent) not included
▪ Talking about results of cases = not political communication
▪ Talking about judiciary in a way which implicated the executive (eg Judge X was a bad appointment/
judge should be dismissed) = political communication within scope of implied freedom
▪ Difference between communication concerning L and E’s acts or omissions concerned with the
administration of justice and communications concerning that subject that do not involve, expressly or
impliedly, acts of omissions of the L or E govt McHugh J in APLA; Hogan v Hinch
STEP 5: Q2 (second limb of Lange)
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?
HOWEVER, there exists divisions about how the second limb of Lange is to be applied
• Two approaches- unstructured and structured
o Unstructured = loose evaluation of the test taking the following factors into account
o Gageler J won’t accept any other test
o The structured test, developed by French CJ, Kiefel, Bell and Keane JJ In McCloy v NSW (2015) broke
the second limb of Lange into 2 steps and was supported in 2017 by the majority of the HCA in Brown v
Tas (Kiefel CJ, Bell, Keane and Nettle JJ)
▪ Note- the minority supported the unstructured test (Gageler,Gordon JJ) – with Edelman J deeming it
unnecessary to consider
• Therefore, McCloy’s two-step structured approach to second limb will be applied
STEP 6: McCloy’s first step compatibility testing
Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally
prescribed system of representative government? (test was modified in Brown)
• Look to purpose section
• What is a legitimate end?
o Protecting reputation Lange
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Step 1: determine if cth/ state law is valid: cth needs to be supported by a head of power in c* (corporations power, external affairs power, defence power, tax power, state- plenary power s 5 c* act (sa) Rather, will look at the law (client ) is charged under to determine if the legislation breaches the implied freedom rendering it invalid. If it is invalid (client) doesn"t have to follow it. Step 4: lange, in 1997, reaffirmed the implied freedom: narrowed it to an implication based on system of representative govt set out by constitutional text. Step 6: q1 (the first limb of lange) However, in mccloy- hc held that the act of donation itself is not a political act or political communication. But, because such a law reduces the amount of money parties have, and therefore the amount of political communication in which those parties can engage, it breaches the implied freedom: protests- inherently political activity.
