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Published online by Cambridge University Press: 24 January 2025
This article provides an overview of the developments in 2004 regarding the constitutional freedom of political communication. This will be done through a discussion of the cases of Coleman v Power and Mulholland v Australian Electoral Commission. These two cases have confirmed the validity of the general propositions in Lange v Australian Broadcasting Corporation, 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 parts of the judgments in Coleman and Mulholland. This article ends with analysis of some of the issues raised by the cases.
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.
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’).
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).
11 JusticeDyson, Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47 Quadrant 9, 17Google Scholar. After delivery of the speech reprinted in the above article, Heydon J was appointed to the High Court. He is a member of the Court which decided the cases discussed in this article. Callinan J has similarly been critical of the Lange decision — see Roberts v Bass (2002) 212 CLR 1, 101–2 [285], where he refers to his earlier reasons in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 330–2 [338].
12 See, eg, Adrienne, Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668Google Scholar.
13 I will not be addressing other relevant High Court cases decided since Lange, such as Levy v Victoria (1997) 189 CLR 579 (‘Levy’), Kruger v Commonwealth (1997) 190 CLR 1 (‘Kruger’), Roberts v Bass (2002) 212 CLR 1, or cases in lower courts such as Jones v Scully (2002) 120 FCR 243.
14 Reproduced in Coleman (2004) 209 ALR 182, 195 [42] (McHugh J).
15 Ibid 195 [37] (McHugh J).
16 This Act was repealed by the Summary Offences Act 2005 (Qld), the operative provisions of which commenced on 21 March 2005. The Explanatory Notes to the Summary Offences Bill 2004 (Qld) state: ‘Many of the provisions of the Vagrants Gaming and Other Offences Act 1931 were so outdated that they were no longer suitable for enforcement in today’s society’: at 1. No specific mention is made with respect to the insulting language provisions of the Vagrants Act. However, similar offences are retained in the guise of prohibitions on public nuisance: see Summary Offences Act 2005 (Qld) s 6.
17 See Coleman v P [2002] 2 Qd R 620.
18 Coleman (2004) 209 ALR 182, 217 [140] (emphasis in original).
19 Ibid 193 [34] (Gleeson CJ), 231 [204] (Gummow and Hayne JJ), 249 [266] (Kirby J), 260 [303] (Callinan J), 270 [337] (Heydon J).
20 Heydon J noted that ‘the Attorney-General for New South Wales disputed [the concession], but “operated on the basis” of it’: ibid 264 [317], fn 325.
21 Ibid 191 [26], 193 [33] (Gleeson CJ), 203–4 [80]–[81] (McHugh J), 230 [197] (Gummow and Hayne JJ), 239 [232] (Kirby J), 255 [289] (Callinan J), 264 [318] (Heydon J).
22 Ibid 202 [74] (McHugh J), 234 [214] (Kirby J).
23 Ibid 203 [79].
24 Ibid 239 [231]–[232].
25 Ibid 227 [183] (Gummow and Hayne JJ), with Kirby J agreeing: at 238 [226].
26 Ibid 210 [105].
27 Ibid 212 [110]. Considering the lack of guidance provided by the courts in relation to what such communication includes, the enforcement of such an interpretation would be difficult.
28 Gleeson CJ (ibid 188 [14]) limited the legislation to include ‘insulting words intended or likely to provoke a forceful response’, with the qualification that:
the language in question must be not merely derogatory of the person to whom it is addressed; it must be of such a nature that … [it] is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues.
Callinan J considered the touchstone of the legislation to be the avoidance of the ‘risk of provocation’: at 255 [287] (emphasis in original); Heydon J adopted the ‘ordinary’ meaning of the word ‘insulting’: at 261 [309].
29 Callinan J did not recognise a common law right or freedom as identified by the other members of the Court but did refer to another ‘valuable freedom’ of peaceful passage in another context: ibid 257 [297]. It is worth noting that the provision of the Summary Offences Act 2005 (Qld), which is to replace the legislation at issue in Coleman, also has ‘peaceful passage’ at its heart: see s 6(2)(b).
30 Coleman (2004) 209 ALR 182, 199 [65] (McHugh J). Gummow and Hayne JJ described as ‘well-established principles of statutory construction’ that ‘[o]nce it is recognised that fundamental rights are not to be cut down save by clear words, it follows that the curtailment of free speech by legislation directed to proscribing particular kinds of utterances will often be read as “narrowly limited”’: at 228 [188] (drawing on the US notion that some kinds of speech fall outside the notion of free speech, but that those categories are ‘narrowly limited’: at 228 [187]). See also at 227 [185] (footnotes omitted): ‘The offence which it creates restricts freedom of speech. That freedom is not, and never has been, absolute. But in confining the limits of the freedom, a legislature must mark the boundary it sets with clarity. Fundamental common law rights are not to be eroded or curtailed save by clear words.’ Seemingly as a separate argument, Kirby J also considered a separate notion of ‘ordinary civil rights to free expression’: at 237–8 [225], 245 [250]. He outlined the rule as follows: ‘In order to be effective, a statutory provision diminishing ordinary civil rights to free expression, otherwise recognised by the common law, must be stated clearly. … General words … will not normally suffice’ (footnote omitted). Kirby J also stated: ‘Because of the common law rule that “everybody is free to do anything, subject only to the provisions of the law”, there is a general freedom of speech under the common law in so far as it has not been lawfully restricted’: at 246 [253] (footnote omitted). He added force to this argument as follows: ‘Even more clearly will this approach govern the interpretation where the common law right in question is protected by an implied constitutional freedom, such as that expressed in Lange’: at 246 [251]. Heydon J also accepted the principle of interpretation, but on the facts found that the word ‘insulting’ is not unclear: at 262 [313]. The Chief Justice took a slightly different but related approach: at 185–8 [7]–[14].
31 The first is that ‘a construction that would arguably diminish fundamental human rights (including as such rights are expressed in international law) should not normally be preferred if an alternative construction is equally available that involves no such diminution’: ibid 237-8 [225]. The second is by incorporating international law or principles in the discussion. See ibid 241–2 [240], 242 [242]; cf at 189–91 [17]–[24] (Gleeson CJ).
32 Ibid 246 [253] (Kirby J); see also Lange (1997) 189 CLR 520, 560.
33 See, eg, Coleman (2004) 209 ALR 182, 227 [184], 229–30 [195]–[199] (Gummow and Hayne JJ); cf at 235–6 [219]–[221] (Kirby J).
34 Ibid 237 [225] (Kirby J).
35 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 534 [66] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), quoting Lange (1997) 189 CLR 520, 564.
36 Tony, Blackshield and George, Williams, Australian Constitutional Law & Theory: Commentary & Materials (3rd ed, 2002) 1249Google Scholar.
37 The Chief Justice (in the minority in relation to the primary charge) did not explicitly address the issue but stated: ‘Let it be accepted that his conduct was, in the broadest sense, “political“’, going on to note the problem of delimiting the scope of ‘political’ communication: Coleman (2004) 209 ALR 182, 191 [28]. This problem has been noted previously: see Theophanous (1993) 182 CLR 104, 123 (Mason CJ, Toohey and Gaudron JJ); Levy (1997) 189 CLR 579, 638 (Kirby J).
38 Coleman (2004) 209 ALR 182, 204 [81].
39 Ibid 210 [105].
40 Ibid 230 [197].
41 Ibid 241 [238]–[239].
42 (2002) 212 CLR 1, 20–1 [39]-[42] (Gleeson CJ), 42–3 [107] (Gaudron, McHugh and Gummow JJ), 66 [184] (Kirby J).
43 See the brief discussion and references in Elisa, Arcioni, ‘Politics, Police and Proportionality – an Opportunity to Explore the Lange test: Coleman v Power’ (2003) 25 Sydney Law Review 379Google Scholar, 382–5.
44 Coleman (2004) 209 ALR 182, 256 [291].
45 Ibid 259 [299]; cf at 230 [199] (Gummow and Hayne JJ).
46 Ibid 255 [287], 257 [295], 257 [297]; cf at 186 [9], 188 [14] (Gleeson J).
47 Ibid 259 [300].
48 Ibid 257-8 [298], where he states that the legislation ‘offers no realistic threat to any freedom of communication about federal political, or governmental affairs. It is no burden upon it. I would hold this to be so regardless of the guarded concession made by the respondents and which I would reject in any event’ (footnote omitted).
49 Ibid 259 [299].
50 Ibid 264 [319].
51 Ibid 268 [330].
52 Ibid.
53 Ibid.
54 Ibid 269 [332].
55 Ibid 203 [80].
56 Ibid 230 [197], referring to Lange (1997) 189 CLR 520, 571.
57 Coleman (2004) 209 ALR 182, 239 [229].
58 Ibid 264 [319] (Heydon J). See also at 264 [317], fn 324 (Heydon J).
59 Ibid 202 [76].
60 Ibid 206 [90].
61 Ibid 229 [195].
62 Ibid 246–7 [254]–[255].
63 Ibid 191 [26] (Gleeson CJ), 264 [318] (Heydon J).
64 Ibid 256 [293].
65 This rewording was suggested by McHugh J: ibid 207 [93] (emphasis added), ostensibly in line with Kirby J’s discussion in Levy (1997) 189 CLR 579, 646: see Coleman (2004) 209 ALR 182, 208 [95]-[96]. This formulation was agreed to by Gummow and Hayne JJ: at 229 [196], and Kirby J: at 233 [211].
66 Coleman (2004) 209 ALR 182, 230 [196] (Gummow and Hayne JJ), 205 [87] (McHugh J), 233 [212] (Kirby J).
67 (1992) 177 CLR 1. See at 76–7 (Deane and Toohey JJ); Cunliffe v Commonwealth (1993) 182 CLR 272 (‘Cunliffe’), 299–300 (Mason CJ).
68 (1997) 190 CLR 1, 126–8.
69 (1997) 189 CLR 579, 619.
70 Coleman (2004) 209 ALR 182, 191 [27], 192 [30]–[31].
71 Ibid 266 [326], quoting from ACTV (1992) 177 CLR 106, 169.
72 Coleman (2004) 209 ALR 182, 267 [326], referring to Cunliffe (1993) 182 CLR 272, 396.
73 Coleman (2004) 209 ALR 182, 267 [327] (footnotes omitted).
74 Ibid 207 [91]–[92]. It is interesting to note that Gleeson CJ referred to this general notion: Mulholland (2004) 209 ALR 582, 593 [33] but supported the different standards of scrutiny to achieve such compatibility.
74 See Brian, Fitzgerald, ‘Proportionality and Australian Constitutionalism’ (1993) 12 University of Tasmania Law Review 263Google Scholar; Jeremy, Kirk, ‘Constitutional Guarantees, Characterisation and Proportionality’ (1997) 21 Melbourne University Law Review 1Google Scholar; Bradley, Selway, ‘The Rise and Rise of the Reasonable Proportionality Test in Public Law’ (1996) 7 Public Law Review 212Google Scholar; Stone, above n 12.
75 Coleman (2004) 209 ALR 182, 193 [33] (Gleeson CJ).
76 Ibid 204–10 [83]–[100].
77 See Stone, above n 12.
78 Coleman (2004) 209 ALR 182, 230 [197]–[198] (Gummow and Hayne JJ), 265 [321], 266–8 [326]–[329] (Heydon J).
79 Ibid 267 [328].
80 Ibid 256 [292].
81 Ibid 240 [234]–[235]; cf at 240 [236].
82 See ibid 240 [235] (Kirby J); cf Mulholland (2004) 209 ALR 582, 648 [248] (Kirby J).
83 Specifically, ss 123(1), 126(2A), 136(1)(b)(ii), 137(1)(b), 137(1)(cb), 137(5) and 138A.
84 See, eg, ss 91(1), 91(7), 91AA.
85 Mulholland (2004) 209 ALR 582, 591 [28].
86 Ibid 592 [30].
87 Ibid 610 [94].
88 Ibid 604–5 [75].
89 Ibid 611 [96].
90 Ibid 611 [97].
91 Ibid 657 [282], 658 [283].
92 Ibid 679 [355], referring to Lange (1997) 189 CLR 520, 560.
93 Mulholland (2004) 209 ALR 582, 679 [355].
94 Ibid.
95 Ibid 634 [192] (Gummow and Hayne JJ), 674 [337]–[338] (Callinan J). However, Gummow and Hayne JJ did state in another context that the ballot paper ‘is the medium by which, in accordance with the Act, a vote is cast. The communication thereon is that required by the statute of the commission in discharge of its functions to administer the Australian ballot system’: at 633 [186].
96 Ibid 615 [112] (McHugh J), 634 [192] (Gummow and Hayne JJ), 674 [337]–[338] (Callinan J), 679 [357] (Heydon J), although there Heydon J notes in fn 444 that it was not necessary to deal with the alternative formulation rejected by Kirby J as he found that on any formulation of the standard of review the legislation is valid.
97 Ibid 636 [203].
98 Ibid 595 [40].
99 Ibid 647 [241] (footnotes omitted).
100 Ibid 592 [33], 594 [39].
101 Ibid 636 [202], 637 [205], 648 [247].
102 Ibid 637 [205].
103 Ibid 642 [223].
104 Ibid 649-50 [249]-[251].
105 Gleeson CJ (ibid 592 [30]) stated that the first stage in the Lange test should be answered ‘yes’. However, he did not address the threshold issue dealt with by a majority.
106 Ibid 613 [105].
107 Ibid 614 [107].
108 Ibid 633 [187].
109 Ibid 634 [192].
110 Ibid 674 [336]–[337] (emphasis in original).
111 Ibid 678 [354].
112 Ibid 678 [354].
113 See, eg, s 95B.
114 See Division 3 of Part IIID.
115 Mulholland (2004) 209 ALR 582, 615 [111].
116 Ibid 633 [188].
117 Ibid 634 [190].
118 Ibid 634 [189], quoting Mason CJ in ACTV (1992) 177 CLR 106, 129.
119 Mulholland (2004) 209 ALR 582, 680 [361].
120 Ibid 650 [252]–[253] (emphasis in original).
121 Ibid 652 [255], 657 [278].
122 Ibid 650-1 [255].
123 Ibid 657 [279].
124 Coleman (2004) 209 ALR 182, 206 [89].
125 Mulholland (2004) 209 ALR 582, 585–7 [6]–[14] (Gleeson CJ), 599-601 [62]–[66], 604 [73], 605–6 [78] (McHugh J), 623–4 [150]–[152] (Gummow and Hayne JJ), 638–40 [211]–[215] (Kirby J), 675 [344] (Heydon J).
126 Ibid 586 [9] (Gleeson CJ).
127 Ibid 586 [10] (Gleeson CJ), 599 [63] (McHugh J).
128 Coleman (2004) 209 ALR 182, 206 [88]. See also Mulholland (2004) 209 ALR 582, 609 [88] where McHugh J stated that the system of representative government and the implied freedom are concepts ‘confined by reference to what the specific provisions of the Constitution are necessarily thought to require.’
129 In McGinty v Western Australia (1996) 186 CLR 140, 230 McHugh J acknowledged that ‘[a]ny theory of constitutional interpretation must be a matter of conviction based on some theory external to the Constitution itself.’ See further at 230-2.
130 See, eg, Stone, above n 12. See also Dan, Meagher, ‘What is “Political Communication“? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne University Law Review 438Google Scholar, 439 where he, like others, maintains that it is ‘necessary and desirable to establish a sound theoretical basis for the implied freedom’, his favoured conception being that of ‘popular sovereignty’.
131 Stephen, Donoghue, ‘The Clamour of Silent Constitutional Principles’ (1996) 24 Federal Law Review 133, 149Google Scholar fn 122. See also at 171–2.
132 Coleman (2004) 209 ALR 182, 206 [88].
133 This is Schauer’s dichotomy. See Frederick Schauer, Free Speech: A Philosophical Enquiry (1982), ch 7, where he distinguishes between ‘coverage’ of a right or freedom of speech, which sets the outer limits of what speech could fall within the right or freedom, and ‘protection’, which is the extent to which, and the manner in which, the covered communication is in fact protected in a particular set of circumstances. I am grateful to Dr Adrienne Stone for bringing it to my attention.
134 See text following n 140 below.
135 However, it should be remembered that they concluded that it is not protected in the circumstances because the legislation restricting the communication satisfies the second stage of the Lange test.
136 Mulholland (2004) 209 ALR 582, 634 [192] (Gummow and Hayne JJ).
137 The combination of these phrases brings to mind Hohfeld’s analysis of legal rights as set out by Waldron in Jeremy, Waldron (ed), Theories of Rights (1984) 6–7Google Scholar. Waldron outlines the way in which Hohfeld characterised legal rights as privileges, claim rights, powers and immunities, with each label bearing a different meaning.
138 The orders in Mulholland were delivered on 20 May 2004 but the reasons were not published until 8 September 2004, with the reasons in Coleman having been published on 1 September 2004. Nor was the ‘pre-existing right’ argument raised in Coleman, presumably because of the concessions made by the parties.
139 Coleman (2004) 209 ALR 182, 208-9 [97] (McHugh J); Mulholland (2004) 209 ALR 582, 601 [66], 602–3 [69]–[70], 611 [97]–[98] (McHugh J). See also Coleman (2004) 209 ALR 182, 265 [323] (Heydon J) and Mulholland (2004) 209 ALR 582, 595 [41] (Gleeson CJ).
140 Coleman (2004) 209 ALR 182, 239 [230], 239 [232]. The Chief Justice did not explicitly address the pre-existing right argument. However, his analysis in Mulholland suggests that he may be more in line with Kirby J’s approach on this issue than the remainder of the Court.
141 I acknowledge that this conclusion of a collapsing of the two stages of the Lange test may appear to sit uneasily with the suggestion above that the pre-existing right requirement forestalls the analysis in the second step of that test. It may be that the majority’s view of the nature of the implied freedom has led to the requirement of the pre-existing right, which must be satisfied as a step antecedent to the analysis of any impugned restriction in accordance with this notion of being a relevant burden rather than being any mere restriction on communication.