Developments in Free Speech Law in Australia: Coleman and Mulholland‡
| Date | 01 June 2005 |
| DOI | 10.22145/flr.33.2.5 |
| Published date | 01 June 2005 |
| Subject Matter | Article |
DEVELOPMENTS IN FREE SPEECH LAW IN AUSTRALIA:
COLEMAN AND MULHOLLAND‡
Elisa Arcioni*
This article provides an overview of the developments in 2004 regarding the
constitutional freedom of political communication.1 This will be done through a
discussion of the cases of Coleman v Power2 and Mulholland v Australian Electoral
Commission.3 These two cases have confirmed the validity of the general propositions
in Lange v Australian Broadcasting Corporation,4 regarding the existence of a freedom of
political communication implied from the Australian Constitution, and provide the basis
for some observations with respect to that implication. In this article an overview is
given of the basic principles in Lange, followed by a detailed discussion of relevant
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‡ This article is based on a paper presented at Speech and Freedom: Comparative Constitutional
Conceptions, Australian National University, December 2004. Thanks to Dr Adrienne Stone
for the invitation to speak at that Symposium and for her valuable comments on earlier
drafts. Thanks also to an anonymous referee for their comments. I acknowledge the
assistance of a grant under the Law Foundation of New South Wales Legal Scholarship
Support Scheme.
* Faculty of Law, University of Wollongong, NSW Australia 2522. Email
arcioni@uow.edu.au.
1 It should be noted that there are a number of potential sources of free speech protection in
the Australian Constitution, in addition to the implication from representative and
responsible government. These include s 92, s 116 and Chapter III of the Constitution. The
potential for ss 92 and 116 to provide protection can be seen from the text of those sections.
The potential for Chapter III to do so is the subject of APLA Ltd v Legal Services
Commissioner of NSW, heard by the High Court on 5, 6 October and 7 December 2004,
judgment reserved. On the basis of the submissions made to the Court in that case, it is
predicted that an implication regarding freedom of communication may emerge from
Chapter III of the Constitution. In brief, Chapter III may protect some speech by requiring
'that the people of the Commonwealth have the capacity, the ability, if you like the
freedom, to ascertain their legal rights and to assert their legal rights to approach the courts
… the freedom to communicate, that is fundamentally to receive such information and
assistance as may be practically necessary for that to occur': Transcript of Proceedings,
APLA Ltd v Legal Services Commissioner of NSW (High Court of Australia, Mr Gageler SC, 5
October 2004).
2 (2004) 209 ALR 182 ('Coleman').
3 (2004) 209 ALR 582 ('Mulholland').
4 (1997) 189 CLR 520 ('Lange').
334 Federal Law Review Volume 33
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parts of the judgments in Coleman and Mulholland.5 This article ends with analysis of
some of the issues raised by the cases.
I LANGE AND SOME BASIC PRINCIPLES
The orthodox starting point for a discussion of the protection of free speech in the
Constitution seems to be Lange.6 Lange followed the decisions of Australian Capital
Television Pty Ltd v The Commonwealth7 and Nationwide News Pty Ltd v Wills,8 in which a
majority of the High Court recognised an implied freedom of political communication
in the Constitution. Unlike the earlier cases, Lange was a unanimous decision of the
High Court. It arose in the circumstances of alleged defamation through the broadcast
of a 'Four Corners' television programme by the Australian Broadcasting Corporation.
Lange, the then New Zealand Prime Minister, alleged that the broadcast conveyed
imputations that, inter alia, he was unfit to hold public office. The High Court
responded by applying the implied freedom, which had been accepted in ACTV and
Nationwide News, to the facts and extended the defamation defence of qualified
privilege to be consistent with that constitutional imperative. The matter was remitted
to the Supreme Court of NSW. Decided in 1997, Lange confirmed that the Constitution,
through its text and structure, established a system of representative and responsible
government.9 Due to the constitutional nature of that system, the Constitution therefore
also requires that there be freedom of some types of communication, as necessary to
maintain that system. That is, the system of government prescribed by the Constitution
cannot exist without people having the freedom to communicate on matters
governmental and political, or else the people could not inform themselves and each
other about potential and actual representatives, nor could the representatives be
'responsible' to the people.
The validity of the restriction placed on the freedom, namely the law of defamation,
was determined by the often-quoted test adopted in the case:
First, does the law effectively burden freedom of communication about government or
political matters either in its terms, operation or effect? Secondly, if the law effectively
burdens that freedom, is the law 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 and the
procedure prescribed by s 128 [of the Constitution] for submitting a proposed amendment
of the Constitution to the informed decision of the people … If the first question is
answered 'yes' and the second is answered 'no', the law is invalid.10
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5 This article focuses only on the free speech aspect of the judgments. It does not address all
the legal issues arising from the cases.
6 This article does not address the history of the development of the ideas in Lange. For cases
preceding Lange see: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR
106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald & Weekly Times
Ltd (1994) 182 CLR 104 ('Theophanous'); Stephens v West Australian Newspapers Ltd (1994) 182
CLR 211.
7 (1992) 177 CLR 106 ('ACTV').
8 (1992) 177 CLR 1 ('Nationwide News').
9 Sections 1, 7, 8, 13, 24, 25, 28 and 30 were referred to as the font of this constitutionally-
prescribed system of government: Lange (1997) 189 CLR 520, 557. See also ss 6, 49, 62, 64, 83,
128: Lange (1997) 189 CLR 520, 557–9.
10 Lange (1997) 189 CLR 520, 567–8 (footnotes omitted).
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