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11.2 Freedom of Political Communication.doc

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Implied Freedom of Political Communication Basis • Freedom of communication on government and political matters: Australian Capital Television Pty Ltd v Cth (ban on political advertising during election periods—Australian broadcasting Tribunal to allocate set time for political advertising between parties  invalid (4:3) (McHugh —only valid to territories | Brennan—only valid to States) | Dawson J rejected guarantee ← attempt to introduce a bill of rights)) o in relation to all levels of government protected (State & Cth) • Implication derived from text & structure of Constitution o ← Implied from representative and responsible government o ← ss 7 & 24 (senate & house of representatives)—allows free & informed choice as electors: Lange  But not confined to election period • The freedom is not absolute o Some legitimate interests that allow freedom to be curtailed o Criticism—many democracies do have laws like this o Eg—Cth may pass law protecting IR body from unwarranted & illegitimate attack, but not from all criticism: Nationwide News Pty Ltd v Wills (ban on using any words in print or speech bringing Industrial Relations Commission or members into disrepute  not in (xxxv) IR power or even incidental | Defamation • Resistance to sweeping immunity: Stephens v West Australian Newspapers per Mason CJ, Toohey & Gaudron JJ cf. Deane J • Not confined to election period: Lange (former PM of NZ bringing defamation against ABC  not liable since defamation burdened freedom || qualified privilege: joint judgment)  law of qualified privilege insufficient • Test: Lange o 1 Limb: Does the law effectively burden freedom of communication about government ondpolitical matters in its terms, operation or effect o 2 Limb: If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner (the fulfilment of) which is compatible with the maintenance of the system of government prescribed by the Constitution:  As slightly modified in Coleman v Power o s • Does not confer personal rights on individuals—restricts legislative & executive powers— sword not a shield: Lange o ← does not apply as defence to defamation of itself  Cf. Theophanous v Herald & Weekly Times (defence for defamation relating to political matters—wide view of political discussion); affirmed in Stephens • Defamation law must conform to guarantee—whether in common law or statute • Wide view of political manner • Also on State matters: Stephens v West Australian Newspapers Andrew Trotter LWB242
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