The Implied Freedom of Political Discussion — Its Impact on State Constitutions
| Author | Gerard Carney |
| Published date | 01 June 1995 |
| Date | 01 June 1995 |
| DOI | http://doi.org/10.22145/flr.23.2.2 |
| Subject Matter | Article |
THE IMPLIED FREEDOM OF POLITICAL
DISCUSSION
-ITS
IMPACT
ON
STATE CONSTITUTIONS
Gerard Carney*
INTRODUCTION
In
October 1994,
the
High
Court
decided
two
lcases,
Theophanous
v
Herald
&Weekly
Times
Ltd2
and
Stephens vWest Australian
Newspapers
Ltd3
both
of
which
are
of
considerable constitutional
importance
to
the
States
in
terms
of
the
reach
of
Commonwealth
implied
rights
and
the
recognition of State
implied
rights.
Theophanous
establishes aconstitutional defence
to
a
defamation
action
based
upon
the
implied
freedom
of political discussion4
previously
derived
from
the
Commonwealth
Constitution
in
Nationwide News Pty Ltd vWills5
and
Australian
Capital
Television Pty Ltd
vCommonwealth.6
In
Stephens, this defence
was
applied
in
the
context of
an
entirely
State
matter.
The
impact
of
the
Theophanous
and
Stephens decisions
on
the
States
may
be
reduced
to
the
following
four
propositions :
(1)
The
Commonwealth
implied
freedom
of political discussion includes
within
the
scope
of
the
freedom
the
political affairs of
the
States;
(2)
The
Commonwealth
implied
freedom
is
an
implied
restriction
on
the
legislative
and
executive
power
of
the
States as well as of
the
Commonwealth;
(3)
The
Commonwealth
implied
freedom
overrides
incompatible principles of
the
common
law
of
the
States as
well
as
their
statute
law;
and
1
2
3
4
5
6
LLB(Hons)(QIT), LLM(Lond), Associate Professor
of
Law, Bond University.
The
author
is
grateful for
the
comments
and
suggestions
of
Emeritus Professor Leslie Zines
on
an
earlier
draft
of
this article. All views
and
errors are those
of
the
author. This article discusses
and
elaborates
upon
the
issues raised
by
the
author
in
a
comment
on
this topic
in
(1995) 6
PLR
147.
A
third
case
was
also decided, Cunliffe vCommonwealth (1994) 124 ALR 120,
which
involved
the
implied
freedom
of
political discussion
but
did
not
involve
any
State issue.
(1994) 124 ALR
1.
(1994) 124 ALR 80.
Although
different descriptions
have
been
given
to this
freedom
in
the
judgments
of
the
High
Court, this description is
adopted
as
the
one
referred
to
in
the
joint
judgment
of
Mason
eJ,
Gaudron
and
Toohey
JJ
in
Theophanous (1994) 124 ALR 1
at
11-13.
The
distinction
between
"political discussion"
and
other
forms of expression
not
covered
by
the
implied
freedom
is discussed
in
that
joint
judgment
at
13-14.
(1992) 177 CLR
1.
(1992) 177 CLR 106.
1995
Implied
Freedom
of
Political
Discussion
181
(4)
Asimilar
implied
freedom is
derived
from
the
Western
Australian
Constitution
Act 1889 (WA).
While
some
of these propositions
were
referred to
in
the
seminal
decisions of
Nationwide News
and
Australian
Capital
Television, only the first
proposition
was
actually
established
in
Australian
Capital
Television.
The second
and
third
propositions
were
first
established
in
both
Theophanous
and
Stephens.
The
fourth
proposition,
decided
in
Stephens, is
the
first occasion
in
which
the
High
Court
has
implied
from
aState
Constitution
arestriction
on
State power.
This article is critical of the reasoning
adopted
by
the majority of
the
High
Court
in
applying
the
implied
freedom
of political discussion as arestriction
on
the
power
of
the
States
in
relation to
the
discussion of
matters
solely the concern of
the
States.
What
began
in
Nationwide News as arestriction
on
the legislative
power
of
the
Commonwealth,
has
now
been
used
to refashion
the
common
law
and
has
developed
into
arestriction
on
the
legislative
and
executive
power
of
the
States. These latest cases
use
the
argument
that
it
is impossible to isolate
any
State political issue as
one
solely
the
concern
of
the
State since all political issues are capable of attracting
the
attention
of
the
Commonwealth.
This article questions
that
position. Further,
the
reasoning
put
forward
by
tl1e
majority for
extending
the
freedom
to the States is meagre.
On
the
basis
of
the
constitutional
derivation
of
the
freedom, Iwill
argue
that
the
freedom,
even
as a
restriction
on
Commonwealth
power,
should
only
protect
discussion of
Commonwealth
or
federal matters. Before discussing these criticisms
in
the
context of
the
four
propositions
outlined
above, abrief outline is given of
the
facts
in
Theophanous
and
Stephens to
provide
the
background
for the discussion
which
follows.
THEOPHANOUS
V
HERALD
AND
WEEKLY
TIMES
LTD
-
THE
FACTS
An
action for
defamation
was
brought
in
Victoria
by
Dr
Theophanous,
a
member
of
the
House
of Representatives
and
chairperson
of
the
Joint
Parliamentary
Standing
Committee
on
Migration
Regulations, against
both
the
Herald
and
Weekly Times
Ltd
as
the
publisher
of
the
Sunday
Herald
Sun,
and
Mr
Bruce Ruxton,
whose
published
letter to
the
editor
of
that
newspaper
essentially
questioned
the fitness of
Dr
Theophanous
to
remain
as chairperson of
that
parliamentary
committee. The first
defendant
pleaded
in
defence a
freedom
implied
from
the
Commonwealth
Constitution
to
publish
political material
and
the
defence of qualified privilege.
This
matter,
along
with
Stephens,
went
to
the
High
Court
by
way
of case stated. A
majority7of
the
Court
accepted
that
the
implied
freedom
of political discussion
protected
the
publication
of material critical of
the
performance
of
members
of
the
Commonwealth
Parliament
from
an
action
in
defamation,
provided
the
defendant
establishes that:
(i)
it
was
unaware
of
the
falsity of
the
material
published;
(ii)
it
did
not
publish
the
material
recklessly,
that
is,
not
caring
whether
the
material
was
true
or
false;
and
7
Mason
eJ,
Deane, Toohey
and
Gaudron
JJ;
contra
Brennan,
Dawson
and
McHugh
JJ.
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