Freedom of Political Communication, the Constitution and the Common Law
| Published date | 01 June 1998 |
| Date | 01 June 1998 |
| DOI | 10.22145/flr.26.2.1 |
| Author | Adrienne Stone |
| Subject Matter | Article |
FREEDOM
OF
POLITICAL
COMMUNICATION,
THE
CONSTITUTION
AND
THE
COMMON
LAW
Adrienne Stone*
INTRODUCTION
Perhaps the
most
remarkable feature of Australian constitutional development
in
the
past
decade has been the
advent
of the constitutional protection of political
communication.1
One
important
effect of this development has
been
to focus
Australian constitutional debate
on
the long-standing
and
rich tradition of
constitutional protection of speech
in
the United States. Reference to American
constitutional
law
is
not
unprecedented. The United States Constitution
has
long
been
asource for Australian constitutional lawyers.
It
was
extensively referred to
by
the
framers of the Australian Constitution2and, over the century since the framing,
it
has
been
aconstant
point
of reference for the
High
Court
of Australia.3However, the
*
1
2
3
BA (UNSW),
LLB
(UNSW), LLM (Columbia), Faculty of Law,
Australian
National
University. This article forms
part
of
the
author's
JSD
dissertation
at
Columbia
University
School
of
Law. The
author
wishes to
thank
Adelle Blackett, Vincent Blasi, Michael Dorf,
Kent Greenawalt, Christine
Haight
Farley, Peter Lindseth, William Ryan,
Peter
Strauss
and
George Williams for their comments
on
earlier drafts
and
other
contributions to
the
development
of
this article. Theo Varvaressos
provided
excellent editorial assistance.
The
High
Court
first recognised aconstitutional freedom
of
political
communication
in
Australian Capital Television Pty Ltd vCommonwealth (1992) 177 CLR 106
and
Nationwide
News
Pty
Ltd vWills (1992) 177 CLR 1
in
which
the
High
Court
held
that
the
system
of
representative
and
responsible
government
established
by
the
Australian
Constitution
impliedly prohibits legislative action
that
interferes
with
the
political expression necessary
for
the
proper
operation
of this
system
of government. Therefore, legislation prohibiting
some
forms
of
political advertising (in Australian Capital Television)
and
legislation
creating
an
offence for speech
bringing
aparticular administrative
tribunal
into
disrepute
(in
Nationwide News),
were
declared invalid.
J A La
Nauze,
The Making
of
the Australian Constitution (1972); A I Clark, Studies in
Australian Constitutional Law (1901)
at
358. Consequently,
the
constitutions
of
the
two
countries
share
many
basic features, namely, a
popularly
elected
House
of
Representatives,
an
upper
house
which
represents (at least
in
theory) the interests
of
the
states, division
of
powers
between
the
arms
of government,
the
enumeration
of federal
powers
and
similar
provisions relating to
the
judiciary
and
the
exercise
of
judicial
power.
See Sir
Anthony
Mason, "The Role
of
aConstitutional
Court
in
aFederation: a
Comparison
of
the
Australian
and
United
States Experience" (1986) 16 FLRev 1.
It
has
assisted
in
justifying judicial review (Australian Communist Party vCommonwealth
(Communist Party
Case)
(1951) 83 CLR 1
at
262, citing Marbury vMadison 5US
(1
Cranch)
220
Federal
Law
Review
Volume
26
influence of the First
Amendment
is particularly significant since the Bill of Rights
and
the other rights provisions of the United States Constitution have traditionally
been
thought
of as a
part
of the American constitutional tradition which Australia does
not
share.4
The influence of American constitutional jurisprudence,
and
specifically First
Amendment
law,
in
the
High
Court
of Australia has never been more significant
than
in
the
most
adventurous
of its decisions
on
the freedom of political communication:
TheOfhanous
v
Herald
and
Weekly
Times
Ltds
and
Stephens
vWest Australian
Newspapers
Ltd.
Here, the
High
Court
significantly
expanded
the protection of political
communication
by
adopting
arule similar to the
New
York
Times
vSullivan doctrine.7
That
is, the
Court
limited the capacity of political figures to bring actions for
defamation. However,
most
unusually for recent decisions of the
High
Court, these
cases
were
reconsidered
and
considerably reformulated
by
the
Court
only three years
after they
were
first announced,
in
Lange
vAustralian
Broadcasting
Corporation.
8
The
short
life of the principles enunciated
in
these cases appears to
lend
fuel to
those
who
argue
against the
use
of American precedent,
and
specifically First
Amendment
law,
in
interpreting the Australian Constitution.9
In
this article, Iwill join
those
who
have
expressed such concerns. My focus, however, is
somewhat
different
from previous analyses. Iwill consider adifference between the two systems
that
has
been overlooked: the different jurisdictions of the highest appellate courts. The
High
Court, unlike the
Supreme
Court
of the United States, has jurisdiction to
hear
appeals
from all courts, State
and
Federal.
In
hearing these appeals,
it
has jurisdiction over
matters of
common
law
as well as federal
law
and
the Constitution. The significance of
the
High
Court's role as the interpreter of the common
law
was highlighted
by
Theophanous
and
Stephens.
In those cases,
argument
was addressed to the
High
Court
on
both the protection of freedom of speech
by
the Constitution
and
by
the
common
law
of defamation.
Had
it been so inclined, the
Court
could
have
avoided the
constitutional issue entirely
through
adecision
on
the common law. However, the
4
5
6
7
8
9
137 (1803»; influenced
approaches
to interpretation (D'Emden v
Pedder
(1904) 1CLR
91
at
111;
0'
Sullivan vNoarlunga Meat Ltd (1954) 92 CLR 565
at
597;
Fairfax
v
Federal
Commissioner
of
Taxation (1965) 114 CLR 1
at
7citing McCulloch vMaryland
17
US
(4
Wheat) 316 (1819»;
and
influenced
the
development
of relationships
between
the
Federal
government
and
the
States. (Melbourne
Corporation
v
The
Commonwealth (1947) 74 CLR
31
at
61,
81
and
83; citing
New York vUnited States 326 US 572 (1946». See generally, JAThomson, "American
and
Australian
Constitutions:
Continuing
Adventures
in
Comparative
Constitutional Law"
(1997) 30 JMarshall LRev
627.
It
is
well
documented
that
the
framers chose
not
to include aUS style Bill
of
Rights because
of
their
confidence
that
the
common
law
and
the
democratic process
would
be
sufficient.
Official
Record
of
the
Debates
of
the
Australasian
Federal
Convention (Melbourne, 8
February
1898)
at
688-90. See also Amalgamated Society
of
Engineers vAdelaide Steamship
Co
Ltd
(Engineers
Case)
(1920)
28
CLR 129
at
151-152.
(1994) 182 CLR 104.
Ibid
at
211.
376 US 254 (1964). See below n28
and
accompanying
text.
(1997) 189 CLR 520.
EBarendt, "Free Speech
in
Australia: a
Comparative
Perspective" (1995) 16 Syd LRev 149
at
165; GRosenberg
and
JMWilliams, "Do
not
Go Gently into
that
Good
Right:
The
First
Amendment
in
the
High
Court
of
Australia" (1997) Sup Ct Rev 439.
1998
Freedom
of
Political
Communication,
the
Constitution
and
the
Common
Law
221
principal basis of the decision of the majority
was
the Constitution.
10
In
my
view, the
Court's failure to appreciate the significance of its
common
law
jurisdiction helps
explain
where
the
High
Court
went
wrong
in
Theophanous
and
Stephens,
and
how
it
might
have
avoided
facing so serious achallenge to recent cases as
it
did
in
Lange.
Before proceeding to
make
this point, however, Idevote
Part
Iof this article to
explaining
the
nature
and
origins of the
High
Court's jurisdiction
on
matters
of
common
law
and
compare
it
to the jurisdiction of the United States
Supreme
Court.
In
Part
II, Ioutline
Theophanous
and
Stephens
and
compare the constitutional
approach
of
the
majority to
the
common
law
approach
of
two
of the dissenting judges.
Part
III
contains the
heart
of
my
argument. Iconsider
how
the
High
Court
ought
to proceed
when
acase before
it
can
be
decided either
by
the
common
law
or
by
interpretation of
the
Constitution. I
argue
that
the
common
law
brings
with
it
significant advantages so
that
in
many
cases
where
the two overlap, the
High
Court
ought
to prefer the
common
law
and
I
use
Theophanous
and
Stephens
to illustrate
my
point.
In
Part
IV, Iidentify
more
precisely the kinds of cases
in
which the benefits
of
a
common
law
solution
should
lead
the
High
Court
to prefer
it
and
defend
my
argument
against
some
of the
most
obvious objections to it. Finally,
in
Part
V,
Iconsider the reformulation of the
Theophanous
doctrine
in
Lange
and
the extent to which
that
decision is responsive to the
critique I
have
launched.
ITHE POWER
TO
DECIDE THE
COMMON
LAW -THE
HIGH
COURT
OF
AUSTRALIA
AND
THE SUPREME COURT OFTHE UNITED STATES
The
High
Court
has
ageneral
power
to decide matters of
common
law as aresult of
s
73
of
the
Australian Constitution, which provides
that
the
High
Court
shall
have
jurisdiction to
hear
appeals from "all judgments, decrees, orders
and
sentences of
any
...
federal court,
or
court
exercising federal jurisdiction,
or
of the
Supreme
Court
of
any
State".ll This provision gives the
High
Court
control over all of the
law
of Australia,
including the
common
law
as developed
by
State
and
Territory courts.
By
contrast, federal courts
in
the United States principally exercise
power
over
federal law, relying
on
a
grant
in
Article III of
power
over "All Cases,
in
Law
and
Equity, arising
under
this Constitution, the Laws of the United States
and
Treaties
made
...
under
their Authority".
Under
other clauses,
such
as the
grant
of jurisdiction
over
cases "between Citizens of different States", federal courts
have
jurisdiction over
cases
in
which state
law
provides the rule of decision. This
may
require federal courts
to decide matters of
common
law,
but
in
these cases federal
power
over state
law
is
limited. The well-known case
Erie
RR
v
Tompkins
ensured
this
by
limiting the
power
of
federal courts
in
relation to matters of state law.12 The
Supreme
Court
held
that
10
11
12
See
below
n28
and
accompanying
text. The
common
law
alternative is illustrated
in
the
minority
judgments
among
the
three dissenters
who
found
no
constitutional
rule
akin
to
New
York
Times
vSullivan,
two
judges
addressed
the
protection
of
freedom
of
speech
through
the
development
of
the
common
law. See below n37.
The
provision
also allows for review
by
the
High
Court
of
the
decision of "any
other
court
of
any
State from
which
at
the
establishment of
the
Commonwealth
an
appeal
lies to
the
Queen
in
Council".
As is well
known
to American lawyers,
in
Erie
RR
vTompkins 304 US 64 (1938)
the
Supreme
Court
reversed Swift vTyson
41
US
(16 Peters) 1(1842)
which
for
almost
a
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