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Freedom of Political Communication, the Constitution and the Common Law

Published online by Cambridge University Press:  24 January 2025

Adrienne Stone
Adrienne Stone*
Affiliation:
Faculty of Law, Australian National University
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Extract

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. 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 a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and, over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the 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.

Type
Research Article
Information
Federal Law Review , Volume 26 , Issue 2 , June 1998 , pp. 219 - 257
Copyright
Copyright © 1998 The Australian National University

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Footnotes

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.

References

1 The High Court first recognised a constitutional freedom of political communication in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (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 a particular administrative tribunal into disrepute (in Nationwide News), were declared invalid.

2 La Nauze, J A, The Making of the Australian Constitution (1972)Google Scholar; Clark, A I, Studies in Australian Constitutional Law (1901) at 358Google Scholar. 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 SirMason, Anthony, “The Role of a Constitutional Court in a Federation: a Comparison of the Australian and United States Experience” (1986) 16 F L Rev 1Google Scholar.

3 It has assisted in justifying judicial review (Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1 at 262, citing Marbury v Madison 5 US (1 Cranch)137 (1803)); influenced approaches to interpretation (D'Emden v Pedder (1904) 1 CLR 91 at 111; 0' Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 at 597; Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 citing McCulloch v Maryland 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 v United States 326 US 572 (1946)). See generally, Thomson, J A, “American and Australian Constitutions: Continuing Adventures in Comparative Constitutional Law” (1997) 30 J Marshall L Rev 627Google Scholar.

4 It is well documented that the framers chose not to include a US 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 v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 at151-152.

5 (1994) 182 CLR 104.

6 Ibid at 211.

7 376 US 254 (1964). See below n 28 and accompanying text.

8 (1997) 189 CLR 520.

9 Barendt, E, “Free Speech in Australia: a Comparative Perspective” (1995) 16 Syd L Rev 149 at 165Google Scholar; Rosenberg, G and Williams, J M, “Do not Go Gently into that Good Right: The First Amendment in the High Court of Australia” (1997) Sup Ct Rev 439CrossRefGoogle Scholar.

10 See below n 28 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 v Sullivan, two judges addressed the protection of freedom of speech through the development of the common law. See below n 37.

11 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”.

12 As is well known to American lawyers, in Erie RR v Tompkins 304 US 64 (1938) the Supreme Court reversed Swift v Tyson 41 US (16 Peters) 1 (1842) which for almost a hundred years had allowed the development of a “general common law” by the federal courts.

13 304 US 64, 78 (1938) “Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or 'general' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.”

14 Dorf, MC, “Prediction and the Rule of Law” (1995) 42 UCLA L Rev 651 at 695Google Scholar.

15 There is, however, some federal common law based on grants of jurisdiction contained in Article III – 2 or in statutes. For example, the grant of jurisdiction in Article III – 2 over cases “to which the United States shall be a party” has provided the basis for the development of federal law concerning some obligations of the United States. For a detailed discussion, see Friendly, Henry J, “In Praise of Erie — And of the New Federal Common Law” (1964) 39 NYU L Rev 383 at 405-22Google Scholar.

16 Wheare, KC, Federal Government (3rd ed 1953) at 68-69Google Scholar. He goes on to note that “the United States alone of the four federations we are discussing [Australia, Canada, Switzerland and the United States] comes near to applying this principle”.

17 Official Record of the Debates of the Australasian Federal Convention (Sydney, 4 March 1891) at 23.

18 Andrew Inglis Clark explicitly noted that to confer a general appellate jurisdiction on the High Court would impose aspects of the British court structure on a federal system. He said of the proposal to give the High Court a general appellate jurisdiction, “I hope that in addition to a separate federal system of courts we shall have a court of appeal as the resolution contemplates. That will be an innovation … upon the American system. The American Supreme Court cannot hear appeals from the supreme courts of the various states except in matters of federal law.” Official Record of the Debates of the Australasian Federal Convention (Sydney, 11 March 1891) at 253.

19 Ibid.

20 For an account of the controversy surrounding the preservation of the Privy Council's role, see Goldring, J, The Privy Council and the Australian Constitution (1996) at 19-33 and 44-48Google Scholar.

21 Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth (1901) at 725 – 288Google Scholar. In Erie, the Supreme Court recognised that such uniformity would not be achieved under Swift because of the persistence of State courts in adhering to their own opinions on questions of common law: 304 US 64, 74 (1938). The power of the High Court to review the decision of all State courts avoids the proliferation of various interpretations of the common law.

22 Ibid. See also Official Record of the Debates of the Australasian Federal Convention (Melbourne,28 January 1898) at 273, 283.

23 J Quick and R Garran, above n 21. Quick and Garran advanced the same rationale in support of s 77 of the Australian Constitution, which allows the Parliament to make laws investing any State court with federal jurisdiction. However, this was primarily motivated by a wish to avoid the “unduly cumbersome judicial machinery in the early years of the Commonwealth”, and to “develop and extend the national judicial system to meet the gradually increasing requirements of the people”: ibid at 803-804, – 337. Quick and Garran noted that it is consistent with the “more national and less distinctively federal” character of the Australian judiciary. They reiterated the rationale they advanced for the High Court's jurisdiction: “[c]onfidence in the integrity and impartiality of the Bench prevents any jealously or distrust of this wide federal jurisdiction; and the same confidence makes it possible to contemplate without misgiving the exercise of federal jurisdiction by State courts”: ibid.

24 (1994) 182 CLR 104.

25 Ibid at 211.

26 376 us 254 (1964).

27 In Stephens, the High Court addressed the additional questions of how the freedom of political communication affected discussion of the political matters of a State, and whether a similar implication could be found in the Constitution of the State of Western Australia: (1994) 182 CLR 211 at 232-34 per Mason CJ, Toohey and Gaudron JJ, at 257 per Deane J.

28 The rule in New York Times v Sullivan “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' … or with reckless disregard of whether it was false or not.”: 376 US 254, 279-80 (1964). The Australian rule was formulated slightly differently. First, Theophanous provided that an action could not be brought for publication of false material if (i) the defendant was unaware of the falsity and not reckless with regard to its truth; and (ii) the publication was reasonable in all the circumstances: (1994) 182 CLR 104 at 140-141. Second, the onus of proof is reversed: the defendant must establish “that it was unaware of the falsity, that it did not publish recklessly (ie not caring whether the matter was true or false), and that the publication was reasonable”: ibid at 137. Further the rule only applies to public officials and candidates for public office.

29 Such as s 41 (a person who acquires the right to vote in a State shall have the right to vote in the Commonwealth); s 80 (a trial on indictment shall be by jury); s 116 (Commonwealth shall not make any law “for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion …”); s 117 (States not to discriminate against the residents of any other states); s 51(xxxi) (acquisition of property to be on just terms).

30 See generally, T Blackshield and G Williams, Australian Constitutional Law and Theory (2nded 1998) at 987-1054. To give an example of this restrictive reading, the High Court has interpreted the guarantee that a trial on indictment shall be by jury so as to allow Parliament total freedom in determining whether the trial shall be by indictment and thus incur the jury requirement: R v Bernascone (1915) 19 CLR 629; R v Archdall & Roskruge; Ex parte Carrigan & Brown (1928) 41 CLR 128.

31 (1994) 182 CLR 104 at 126 per Mason CJ, Toohey and Gaudron JJ, at 164-165 per Deane J.

32 The High Court's analysis changed in Lange v The Australian Broadcasting Corporation (1997) 189 CLR 520. See below nn 171-204 and accompanying text.

33 Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174; McKinney v University of Guelph (1990) 76 DLR (4th) 545 at 635 per La Forest J. See K Swinton, “Applications of the Canadian Charter of Rights and Freedoms” in Tarnopolsky, W S and Beaudoin, G A, The Canadian Charter of Rights and Freedoms – Commentary (1982) at 42Google Scholar. A similar position was taken by Brennan J, a dissentient in Theophanous, with regard to the implied freedom of political communication: (1994) 182 CLR 104 at 153.

34 Although in the United States the common law is considered, for the most part, to be State law, State laws are subject to the provision of the Bill of Rights through the interpretation of the Fourteenth Amendment: Palko v Connecticut 302 US 319, 325 (1937). Secondly, although most constitutional provisions apply to government not private action, judicial enforcement of the common law constitutes State action: New York Times v Sullivan 376 US 254, 265 (1964). Although, the High Court has reached the same result as the United States Supreme Court, the precise explanation that has emerged is different. It was most clearly expressed in Lange v Australian Broadcasting Corporation where the Court held that “[t]he Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form 'one system of jurisprudence' … Within that single system of jurisprudence, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.”: (1997) 189 CLR 520 at 564.

35 Theophanous (1994) 182 CLR 104 at 111, 116; Stephens (1994) 182 CLR 211 at 214,217.

36 (1994) 182 CLR 104 at 140 per Mason CJ, Toohey and Gaudron JJ, at 187-88 per Deane J.

37 There were three dissentients. Brennan J dissented on the basis that the implied freedom operated only to limit the legislative powers of the Parliament: (1994) 182 CLR 104 at 149. Dawson J dissented, taking the view he first expressed in Australian Capital Television and Nationwide News, that there is no constitutional freedom of political discussion flowing from the establishment of representative government: ibid at 191. McHugh J's dissent also followed from his decision in Australian Capital Television and Nationwide News. Although he had joined the majority in striking down the legislation in those cases, the basis of his decision was considerably narrower. He recognised that a freedom of political communication only existed to protect a narrow concept of representative government, namely, the direct election of the Federal parliament by the people. Consequently, the implied freedom had no effect on defamation laws: ibid at 203-205.

38 These cases came to the High Court as cases stated under s 40 of the Judiciary Act 1903(Cth) which allows for a case raising a constitutional question pending in a lower court to be removed into the High Court by its own order. Section 18 then provides for a case to be stated for the Court's consideration. In Theophanous and Stephens the cases were removed to the High Court under s 40 before their respective trials: Theophanous (1994) 182 CLR 104 at 119; Stephens (1994) 182 CLR 211 at 235 and 258. The Chief Justice stated a case for the High Court to consider. In Theophanous, the case consisted of four questions: the first two questions addressed the constitutional issue. The third question was as follows: “If yes to any part or parts of question 1, is any such publication a publication on an occasion of qualified privilege … ?”: (1994) 182 CLR 104 at 120. Strictly, therefore, the question only arose upon a finding that the Constitutional protection extended to the publication of material described in question 1. As they had dissented on this question, Brennan, Dawson and McHugh JJ took the view that the common law question did not arise: ibid at 163, 194 and 207.

39 The classic statement of the defence of qualified privilege is that of Parke B in Toogood v Spyring (1834) 1 CM & R 181 at 193: 149 ER 1044 at 1049-1050.

40 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 513.

41 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.

42 Brennan and McHugh JJ both extended the traditional category of “public interest” to include matters relating to government and the conduct of public affairs: (1994) 182 CLR 211 at 251 per Brennan J, at 265 per McHugh J. Further, both judges placed emphasis on the status of the maker of the communication. For Brennan J the privilege will only be available where the maker of the communication has “particular knowledge” of the subject matter, though it will be sufficient if the publisher had a reasonable belief that that person had such knowledge: ibid at 252. For McHugh J the maker of the communication must have “special knowledge”: ibid at 265. The principal differences are that McHugh J did not extend the privilege to bare defamatory comment whereas Brennan J required the statement to be “fair and accurate” and that the person the subject of the communication have a reasonable opportunity for response: ibid at 252 and 267.

43 See below nn 109-18 and accompanying text.

44 Lewis, A, Make No Law (1991) at 21-22CrossRefGoogle Scholar.

45 Ibid at 24-27.

46 Ibid at 28-31.

47 Ibid at 35.

48 See above n 38.

49 See the questions stated in Theophanous above n 38. As the questions reserved in Theophanous dealt with the possible constitutional and common law bases for protection of the speech in question, the questions in Stephens simply asked whether the two defences pleaded, a defence relying on the implied freedom of communication and one relying on qualified privilege, were bad in law: Stephens (1994) 182 CLR 211 at 231. No doubt also influenced by the form of the case stated, counsel appear to have put argument to the High Court on the basis that the common law of qualified privilege was a secondary defence, which was to be considered after the constitutional question had been decided: Theophanous (1994) 182 CLR 104 at 111, Stephens (1994) 182 CLR 211 at 214.

50 Many of these rules are set out by Justice Brandeis in his famous concurring opinion in Ashwander v TVA 297 US 288, 345-49 (1936) (Brandeis J with whom Stone, Roberts and Cardozo JJ agreed). See generally, Kloppenberg, LA, “Avoiding Constitutional Questions” (1994) 35 BC L Rev 1003 at 1018-1027Google Scholar.

51 Ashwander v TVA 297 US 288, 348 (1936). For instances of the Australian doctrine of “reading down” statutes and the related technique of “severance”, whereby the Court may declare parts of a statute as invalid but allow the rest to stand, see D' Emden v Pedder (1904) 1 CLR 91 and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Why brow & Co (Bootmaker's Case No 2) {1910) 11 CLR 1.

52 Bickel, A, The Least Dangerous Branch (2nd ed 1986)Google Scholar.

53 The Australian Constitution, for example, can only be amended according to the referendum procedure prescribed by s 128.

54 The concern over vulnerability of the United States Supreme Court to political attack wasacute in the aftermath of the Court's ultimately futile resistance to the New Deal. See A Bickel, above n 52 at 45-47, 240. See generally, L A Kloppenberg, above n 50 at 1042- 1043.

55 L A Kloppenberg, above n 50 at 1042. On the limited institutional capacity of courts, see generally, Rosenberg, G N, The Hollow Hope (1991)Google Scholar.

56 L A Kloppenberg, above n 50 at 1047.

57 Ibid at 1055.

58 Ibid at 1040.

59 This argument has something in common with, and has been influenced by, Cass Sunstein's recent argument for a strategy of judicial “minimalism”. That is, a strategy of leaving as much as possible undecided in cases in which the Court is dealing with “an issue of high complexity about which many people feel deeply and on which the nation is in flux (moral or otherwise).” Sunstein, CR, “Foreword: Leaving Things Undecided” (1996) 110 Harv L Rev 4 at 8Google Scholar. Part of his argument for minimalism is that it reduces “error costs”, the costs of a wrong decision.

60 Under this standard, regulation directed to the content of speech will generally only be permissible if the government can show that “its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”: Widmar v Vincent 454 US 263, 270 (1981). There are some categories of speech, including obscenity and face to face insults (often referred to as “fighting words”) and, subject to New York Times v Sullivan and related rules, libel which have traditionally been regarded as subject to a lower standard of review. However, recently the Supreme Court has found even regulation of previously “unprotected categories” of speech will be subject to strict scrutiny unless it can be shown to be “content neutral”: RAV v City of St Paul 505 US 377 (1992).

61 Buckley v Valeo 424 US 1, 48-49 (1976) “[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse arid antagonistic sources, and to assure unfettered interchange of ideas.” (citations omitted).

62 (1992) 177 CLR 106 at 143 per Mason CJ. See also at 234-235 per McHugh J.

63 Ibid at 143 per Mason CJ, at 234-235 per McHugh J. In the case of regulation directed only at the activity of communication, however, a less restrictive proportionality requirement was imposed. That is, the test of constitutionality depends on whether “the burden on free communication … is disproportionate to the attainment of the competing public interest”: ibid at 143 per Mason CJ. See also ibid at 235 per McHugh J.

64 Like Mason CJ and McHugh J, they set a standard of review which varies with the nature of the regulation. A law which aims to control communication will be more difficult to justify than a law “with respect to some other subject and whose effect on such communications is unrelated to their nature as communications”. Such laws can only be justified if either they “do not go beyond what is reasonably necessary for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity”; or “are conducive to the overall availability of the effective means of such communication in a democratic society”: Nationwide News (1992) 177 CLR 1 at 76-77. See also Australian Capital Television (1992) 177 CLR 106 at 174. Although this standard of review might appear less stringent than the “compelling justification” test advanced by Mason CJ and McHugh J, as elaborated by Deane, J in Cunliffe v Commonwealth (1994) 182 CLR 272Google Scholar, the standard is closer to a strict scrutiny requirement. The requirement that a law must “not go beyond what is necessary” means that it must be viewed by a “pressing social need”: (1994) 182 CLR 272 at 339-340 (quoting Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd [No.2] [1990] 1 AC 109 at 283-284).

65 Australian Capital Television (1992) 177 CLR 106 at 157-158. The remaining judge who recognised the freedom of political communication, Gaudron J, took an approach like that of Brennan J. Regulation of speech is permissible only if it is directed to the achievement of a legitimate end and “is reasonably and appropriately adapted to that end”: Nationwide News (1992) 177 CLR 1 at 95. See also Australian Capital Television (1992) 177 CLR 106 at 218. However, she was also troubled by the provisions allocating free use of electronic media to some political actors, finding that the restrictions placed on political discourse “cannot be viewed as reasonable and appropriate regulation in a context where candidates and political parties are allocated free time for their political advertisements”: ibid at 221. The seventh member of the Court, Dawson J, dissented on the basis that the Constitution included no limitation on legislative power to protect freedom of political discourse: ibid at 184.

66 Nationwide News (1992) 177 CLR 1 at 52

67 Australian Capital Television (1992) 177 CLR 106 at 159 citing The Observer and the Guardian v The United Kingdom (1991) 14 EHRR 153 at 178.

68 Buckley v Valeo 424 US 1, 48-49 (1976); see above n 61.

69 The legislation restricting political advertising challenged in Australian Capital Television was designed to improve the political process by reducing the possibility of corruption and equalising access to the use of electronic media for political purposes: (1991) 177 CLR 106 at 130.

70 Ibid at 145 per Mason CJ, at 169 per Deane and Toohey JJ.

71 Ibid.

72 They were particularly troubled by the provisions for the allocation of free time which served to mitigate the effect of the regime in relation to established political parties, but not in relation to other participants in the political process: Australian Capital Television (1992) 177 CLR 106 at 146, 175 and 237.

73 Brennan J recognised thats 95B (restricting advertising by means of the electronic media during election periods) was directed at minimising corruption and reducing the political advantage which wealth could bring: ibid at 154-156. He then held that “[t]he restrictions imposed by s 95B are comfortably proportionate to the important objects which it seeks to obtain. The obtaining of those objects would go far to ensuring an open and equal democracy. The openness of political discussion and the equality of the participants in the democratic process makes governments responsive to the popular will. The restrictions on advertising do little to inhibit the democratic process.”: ibid at 161.

74 Theophanous (1994) 182 CLR 104 at 131 per Mason CJ, Toohey and Gaudron JJ, at 182-183 per DeaneJ.

75 Alexander Meiklejohn was perhaps the principal exponent of this theory of free speech: Meiklejohn, A, Free Speech and its Relation to Self Government (1948)CrossRefGoogle Scholar. See also Mills v Alabama 384 US 214, 218 (1966): “there is practically universal agreement that a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs.” See also Buckley v Valeo 424 US 1, 14 (1976) (discussion on public issues and debate on the qualifications of candidates is “an area of the most fundamental First Amendment activities … integral to the operation of the system of government established by our Constitution.”). See generally, Schauer, F, Free Speech: A Philosophical Enquiry (1981) at 35-46Google Scholar; Greenawalt, K, “Free Speech Justifications” (1989) 89 Colum L Rev 119 at 145-46CrossRefGoogle Scholar.

76 Stromberg v California 283 US 359, 369 (1931) “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” See also Roth v United States 354 US 476, 484 (1957); Archibald Cox, The Court and the Constitution (1987) at 212 “Only by uninhibited publication can the flow of information be secured and the people informed concerning men, measures, and the conduct of government … Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them.”

77 376 US 254,269 (1964) citing Roth v United States 354 US 476,484 (1957).

78 The High Court uses the term “representative democracy” as well as “representative government”: Theophanous (1994) 182 CLR 104 at 130, 163. Although some distinction has been drawn between these concepts, ibid at 199, I use them interchangeably.

79 376 us 254, 279 (1964).

80 Ibid at 271-272.

81 Ibid at 272-273.

82 Coleman v MacLennan 78 Kan 711 at 724; 98 P 281 at 286 (1908).

83 Blasi, V, “Learned Hand and the Self Government Theory of the First Amendment” (1990) 61 U Colo L Rev 1Google Scholar.

84 Ibid at 15. Professor Blasi excepts “any increased likelihood that incumbents will be rejected at the polls.” Under a self-government theory, this cannot be counted as a harm against which freedom of speech is weighed since it is exactly this, the choice of who governs, that free speech is designed to foster.

85 Abrams v United States 250 US 616, 630 (1919) (Holmes J dissenting). See generally,K Greenawalt, above n 75 at 130-41; F Schauer, above n 75 at 15-34.

86 For criticisms of this notion see K Greenawalt, above n 75 at 131-141; F Schauer above n 75 at 28-33.

87 Mill, J S, On Liberty (E Rapaport ed 1978) (1st ed 1859) at 15-52Google Scholar.

88 See F Schauer, above n 75 at 33-34.

89 Blasi, V, “Reading Abrams through the Lens of Schauer” (1997) 72 Notre Dame L Rev 1343 at 1349Google Scholar.

90 376 us 254, 270, 279 (1964).

91 376 us 254, 270 (1964).

92 See Fiss, O, “Free Speech and Social Structure” (1986) 71 Iowa L Rev 1405 at 1410Google Scholar. Fiss attacks the traditional protection of free speech in the United States, pointing to the capacity of major broadcasters (like the American CBS network) to determine the content of public debate: “The Tradition assumes that by leaving individuals alone, free from the menacing arm of the policeman, a full and fair consideration of all the issues will emerge. The premise is that autonomy will lead to rich public debate … when our perspective shifts, as I insist it must, from the street corner to, say, CBS, this assumption becomes highly problematic … autonomy … might even become destructive of that goal.” He concludes that regulation can correct this distortion that flows from social structure. “[I]n the modern world the state can enrich as much as it constricts public debate”: ibid at 1415. See also CR Sunstein, The Partial Constitution (1993) at 203-213.

93 One criticism of the New York Times rule is that “it encourages sloppy journalism because the lower the standard of care that is seen as 'normal' for journalists, the harder it will be for public figure plaintiffs to prove the greater dereliction of 'recklessness' required under the Sullivan rule.”: Chesterman, M, “The Money or the Truth” (1995) 18 UNSWLJ 300 at 307-308Google Scholar.

94 A Lewis, “New York Times v Sullivan Reconsidered: Time to Return to 'The Central Meaning of the First Amendment"' (1983) 83 Colum L Rev 603; Strossen, N, “A Defence of the Aspirations – But not the Achievements – of the US Rules Limiting Defamation Actions By Public Officials or Public Figures” (1986) 15 Melb UL Rev 419.Google Scholar

95 Although the Supreme Court has limited the category of public figures to those who have “thrust” themselves into controversy or voluntarily attracted fame (see Gertz v Robert Welch Inc 418 US 323, 352 (1974); Time Inc v Firestone 424 US 448 (1976); Hutchinson v Proxmire 443 US 111 (1979); Wolston v Reader's Digest Assn Inc 443 US 157 (1979)), the category of defendants to whom it applies extends beyond public officials and those involved in public affairs to figures who have no relation to the political affairs, criticism of whom bears little relation to the speech about public affairs which New York Times was aimed to protect. See A Lewis, above n 94 at 622-24 who argues that individuals should only come within the New York Times philosophy “when they meet two tests: prominence in the community and relevance to public affairs”. See also DA Anderson, “Is Libel Law Worth Reforming?” in J Soloski and RP Bezanson (eds), Reforming Libel Law (1992) at 8; G Gunther, Constitutional Law (12th ed 1991) at 1094.

96 A Lewis, above n 94 at 609-11. For “actual malice” see above n 28. In Herbert v Lando 441 US 153 (1979) the Supreme Court rejected a claim for a First Amendment privilege in relation to pre-trial discovery proceedings. See DA Anderson, above n 95 at 18-21.

97 D A Anderson, above n 95 at 18.

98 A Lewis, above n 94 at 614.

99 Theophanous (1994) 182 CLR 104 at 134 “[W]e should indicate our preliminary view that these extensions, other than the extension to cover candidates for public office, should not form part of our law.”

100 Ibid at 135.

101 Under the Australian rule, the defendant must establish “that it was unaware of the falsity, that it did not publish recklessly {ie not caring whether the matter was true or false) and that the publication was reasonable”: ibid at 137. Cf discussion of “actual malice” above n28.

102 Ibid at 140-41. See also above n 28 and accompanying text.

103 This is a requirement under the Defamation Act 1974 (NSW), s 22. See Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374; New South Wales Law Reform Commission, Defamation (Report No 75, 1995) at 32.

104 (1994) 182 CLR 104 at 137.

105 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152. See below rm 141-44 and accompanying text.

106 Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 at 129 where Allen J held that it is for the judge to determine whether the constitutional defence arises on the evidence but that the “reasonableness” requirement is one for the jury.

107 Posner, RA, “Legal Reasoning From the Top Down and From the Bottom Up” (1992) 59 U Chic L Rev 433CrossRefGoogle Scholar.

108 Posner notes, ibid at 434, that J H Ely advanced a similar “top down” theory about constitutional law in general in Democracy and Distrust: A Theory of Judicial Review (1980).

109 Brennan J approved the High Court's statement in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 that “[t]here is … no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because the statement is made in the course of dealing with a matter of public interest”: (1994) 182 CLR 211 at 244. He considered that departure from this position “would be a charter for scandal mongering”: ibid at 245.

110 (1994) 182 CLR 211 at 247-249.

111 Ibid at 251.

112 Ibid.

113 Brennan J placed four limits on the operation of the privilege: the subject matter of the defamatory statement must be a matter of relevant public interest; the report must be fair and accurate; the maker of the statement must have, or be reasonably believed by the publisher to have, “particular knowledge of the defamatory matter contained in the statement” and “[t)he party defamed must have an opportunity to make a reasonable response to the defamatory matter”: ibid at 251-253.

114 The principal basis of McHugh J's decision was that, on the facts of the case, the appropriate defence was fair comment, not qualified privilege: ibid at 260. Nevertheless, he went on to consider, and extend, the common law of qualified privilege.

115 Adam v Ward [1917] AC 309 in which a claim of qualified privilege was upheld in respect of a letter published widely by an Army Council in defence of an officer who had been the subject of false defamatory comment in the House of Commons; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 in which the High Court upheld a claim of qualified privilege in respect of a newspaper article containing a reply to an attack on a municipal council made in the same article. These cases were discussed by McHugh J (1994) 182 CLR 211 at 262.

116 In Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 a claim of qualified privilege was upheld by the English Court of Appeal in relation to a report to the public removing the name of a medical practitioner from the register of practitioners. In Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971) NZLR 961 a defence of qualified privilege was upheld in respect of defamatory comments made by a minister of the Crown who discovered that he had been misled into commending a road safety campaign. These are discussed by McHugh J (1994) 182 CLR 211 at 263.

117 (1994) 182 CLR 211 at 263-264.

118 Ibid at 265.

119 RA Posner, above n 107 at 435. See also Alexander, L, “Bad Beginnings” (1996) 145 U Pa L Rev 57CrossRefGoogle Scholar; Schauer, F, Playing by the Rules (1991) at 183-87Google Scholar.

120 Eisenberg, M A, The Nature of the Common Law (1988) at 76-83Google Scholar.

121 Ibid at 77. See Dworkin, R, Law's Empire (1986) at 312Google Scholar arguing that common law judges ought to decide hard cases by determining the basic principle underlying decided cases and determining the principled extension of that those cases.

122 M A Eisenberg, above n 120 at 83-87.

123 Gerhold v Baker [1918] WN (UK) 368 at 369. See also Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1050 (qualified privilege protects “the common convenience and welfare of society”); Huntley v Ward (1859) 6 CB (NS) 514 at 517; 141 ER 557 at 559 (“[T]he law declares [a publication] privileged because the amount of public inconvenience from the restriction of freedom of speech or writing would far out-balance that arising from the infliction of a private injury.”). See generally, Lewis, P, Gatley on Libel and Slander (1981) at 186Google Scholar.

124 Henwood v Harrison (1872) LR 7 CP 606 at 622. “The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice notwithstanding that they involve relevant comments condemnatory of individuals.” See also Justin v Associated Newspapers Ltd [1967] 1 NSWLR 63 at 75. See generally, Gatley On Libel and Slander, ibid at 187-188.

125 Baird v Wallace-James (1916) 85 LJPC 193 at 198 cited with approval by Dixon Jin Guise v Kouvelis (1947) 74 CLR 102 at 117. See also Gatley on Libel and Slander, above n 123 at 192 “Whether there is a duty to communicate which the law will recognise as creating a privileged occasion depends on all the circumstances and no previous decisions can be conclusive.”

126 Stephens (1994) 182 CLR 211 at 240.

127 Guise v Kouvelis (1947) 74 CLR 102 at 116.

128 (1994) 182 CLR 211 at 249. After reviewing the cases Brennan J concluded: “[t]he availability of privilege depends on the evaluation of factors that fall roughly, but not exclusively, into two groups: those affecting the public interest in the function of the body (its status, constitution and functions and the circumstances in which the defamatory statement was made) and those affecting the public interest in the subject matter of the report (the source of the defamatory statement, the opportunity for response and any making of a finding after an inquiry).” See also Brennan J, above n 109.

129 (1994) 182 CLR 211 at 264-265.

130 Ibid.

131 Sunstein, C R, Legal Reasoning and Political Conflict (1996) at 35-38CrossRefGoogle Scholar.

132 See generally, Gatley on Libel and Slander, above n 123 at 186.

133 (1994) 182 CLR 211 at 265.

134 See text accompanying n 118 above.

135 (1994) 182 CLR 211 at 267.

136 Ibid at 267.

137 Ibid.

138 (1994) 182 CLR 211 at 267 “[A]lthough some champions of freedom of expression might argue otherwise, I am not convinced that society benefits by allowing persons to make defamatory comments that injure the reputations of others unless that comment is fair and based on facts that are true or … attract the defence of qualified privilege.”

139 For a helpful analysis of various views of common law decision-making, see M A Eisenberg, above n 120 at 2.

140 (1995) 64 SASR 152.

141 Ibid at 180-181 per Olsson}, at 195-196 per Mullighan J.

142 Ibid at 180.

143 Ibid at 196.

144 Ibid at 187, 198. Section 22(1) provides for a defence of qualified privilege where in respect of a publication:

(a) the recipient has an interest or apparent interest in having information on some subject;

(b)the matter is published to the recipient in the course of giving to him information on that subject; and

(c)the conduct of the publisher in publishing that matter is reasonable in the circumstances.

145 They relied upon Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749; Wright v Australian Broadcasting Commission [1977) 1 NSWLR697.

146 (1985) 3 NSWLR 354 at 360.

147 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 at 187 and 198.

148 (1994) 182 CLR 104 at 122.

149 R A Posner, above n 107 at 433.

150 Strauss, D, “Common Law Constitutional Interpretation” (1996) 63 U Chic L Rev 877CrossRefGoogle Scholar.

151 See above nn 1, 28.

152 But see below n 179 and' accompanying text.

153 JrKalven, H, “The New York Times Case: A Note on 'The Central Meaning of the First Amendment” 1964 Sup Ct Rev 191CrossRefGoogle Scholar.

154 Ibid at 204.

155 Ibid.

156 As Kalven explains, New York Times v Sullivan represents a judgment by the Supreme Court that the Alabama rule on fair comment “is closely akin to making seditious libel an offense. The Alabama rule therefore violated the central meaning of the Amendment”: ibid at 209.

157 Ibid.

158 In his view, the repudiation of seditious libel is one such standard because “the presence or absence in the law of the concept of seditious libel defines the society … [if] it makes seditious libel an offense, it is not a free society no matter what its other characteristics”: ibid at 205.

159 Gunther, Gerald in “The Case of Justice Powell” (1972) 24 Stan L Rev 1001 at 1026-7CrossRefGoogle Scholar made a similar argument in a different context. In criticising “case-by-case” or “ad hoc” balancing in First Amendment decision-making, he argued: “A Supreme Court opinion should strive for more than a “fair balancing” in the individual case before the Court. It should also provide the maximum possible guidance for lower courts and litigants. An excessively particularized opinion lacks that quality. There must at least be an articulation of the criteria that guide the resolution of the value conflicts in a particular case … Moreover, especially when sensitive First Amendment values are involved, the risks of case-by-case adjudication may be too great and broader prophylactic rules may be appropriate.”

160 Blasi, V, “The Pathological Perspective and the First Amendment” (1985) 85 Colum L Rev 449CrossRefGoogle Scholar. See also G Gunther above n 159.

161 H Kalven, above n 153 at 209-10.

162 Stephens (1994) 182 CLR 211 at 264.

163 See text accompanying above nn 123-131.

164 V Blasi, above n 160.

165 Gerald Gunther makes this point in his critique of Alexander Bickel (see A Bickel, above n 52): see Gunther, G, “The Subtle Vices of the 'Passive Virtues” (1964) 64 Colum L Rev 1CrossRefGoogle Scholar. To make his point, Gunther takes Bickel's suggestion that there exists a discretion to refuse to hear a case for “lack of ripeness”, that is, the case is not before the Court in the most advantageous posture for decision. Gunther says “the lack of 'ripeness' he mentions does not seem to be of constitutional dimensions. He does not have the article III requirement of concreteness in mind; this appears to be a use of 'ripeness' as 'merely a conclusionary label', as merely a formula to obscure the ground of 'jurisdictional' dismissal”: ibid at 15.

166 Ashwander v TV A 297 US 288 (1936) and see above n 50 and accompanying text.

167 Schauer, F, “Ashwander Revisited” 1995 Sup Ct Rev 71CrossRefGoogle Scholar.

168 G Gunther, above n 165 at 21.

169 F Schauer, above n 167 at 81-86.

170 Dworkin, R, Law's Empire (1986) at 225Google Scholar.

171 McGinty v Western Australia (1996) 186 CLR 140 at 235-236 per McHugh J “I regard the reasoning in Nationwide News, Australian Capital Television, Theophanous and Stephens in so far as it invokes an implied principle of representative democracy as fundamentally wrong and as an alteration of the Constitution without the authority of the people under s 128 of the Constitution.” See also at 291 per Gummow J “[T]he process of constitutional interpretation by which this principle was derived … and the nature of the implication … departed from previously accepted methods of constitutional interpretation. If it now were sought to apply the principle then the need for further examination of it would arise.”

172 (1997) 189 CLR 520 at 550.

173 Ibid at 552.

174 (1996) 186 CLR 140 at 169.

175 This was the basis of McHugh J's dissent in Theophanous. He held that there is “no support in the Constitution for an implication that the institution of representative government or representative democracy is part of the Constitution independently of ss 1, 7, 24, 30 and 41” and consequently that there is “nothing – in the text of the Constitution, in the Convention Debates or in principles of constitutional interpretation hitherto accepted – that suggests that State legislation or common law principles are liable to be overturned by a principle of representative government or representative democracy that is implied in the Constitution”: (1994) 182 CLR 104 at 199, 205. See also McGinty (1996) 186 CLR 140 at 232- 35 per McHugh J, at 291 per Gummow J.

176 (1996) 186 CLR 140 at 234.

177 (1997) 189 CLR 520 at 566-567.

178 These require that the members of the Senate and the House of Representatives be “directly chosen by the people” of each State and of the Commonwealth, respectively.

179 (1997) 189 CLR 520 at 557. According to the High Court, the relevant context is provided bys 1 (vesting the power of the Commonwealth in the Parliament); ss 8 and 30 (electors for the Senate and the House of Representatives to vote only once); s 25 (persons of any race disqualified from voting at elections not be counted in determining electorates under s 24); s 13 (six years to be the longest term served by a Senator) and s 28 (the House of Representatives to continue for no longer than three years).

180 Ibid at 558. The High Court relied on s 6 (requiring a session of Parliament at least once a year); s 83 (requiring that money be appropriated from the treasury by law); s 62 (executive power of the Queen exercised on the initiative and advice of ministers); s 64 (Ministers required to sit in Parliament); s 49 (adopting the “powers privileges and immunities” of the House of the Parliament of the United Kingdom).

181 Ibid at 559.

182 Ibid at 560.

183 Ibid at 561.

184 Ibid.

185 Above nn 31-34 and accompanying text.

186 (1994) 182 CLR 104 at 126.

187 Ibid at 164-165. He noted also that to exclude the common law from constitutional scrutiny would allow courts to undermine the freedom of political communication through development of the common law. For example, it is conceivable that the common law could make actionable a statement which relates to the core of the constitutional freedom, such as a comment about the suitability for office of the Prime Minister. See Greenawalt, K, Fighting Words (1995) at 15CrossRefGoogle Scholar. As Greenawalt notes, however, this problem is mitigated if the common law is developed in accordance with constitutional values.

188 (1997) 189 CLR 520 at 560.

189 Ibid at 564.

190 Ibid.

191 See above nn 65-67 and accompanying text.

192 (1997) 189 CLR 520 at 567. However, some members of the High Court appear subsequently to have departed from this position in Levy v Victoria (1997) 189 CLR 579. See Stone, A, “Lange, Levy and the Direction of the Freedom of Political Communication Under the Australian Constitution” (1998) 21 UNSWLJ 117 at 130-33Google Scholar.

193 The High Court also held that, even without the common law extension of qualified privilege, s 22 of the Defamation Act (NSW) “ensures that the New South Wales law of defamation does not place an undue burden on communications falling within the protection of the Constitution.” ibid at 575.

194 Ibid at 570-571.

195 Ibid at 574.

196 Ibid at 571.

197 Ibid at 572-573.

198 Ibid at 571.

199 See also Stone, A, “Incomplete Theorizing in the High Court”, (1998) 26 FL Rev 117Google Scholar.

200 Ibid at 567.

201 McGinty (1996) 186 CLR 140 at 231-32 per McHughJ. “Underlying or overarching doctrines may explain or illuminate the meaning of the text or structure of the Constitution but such doctrines are not independent sources of the powers, authorities, immunities and obligations conferred by the Constitution. Top-down reasoning is not a legitimate method of interpreting the Constitution … it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or necessary implications from its structure.” (footnote omitted).

202 McHugh J acknowledged in McGinty (1996) 186 CLR 140 at 230 that “[a]ny theory of constitutional interpretation must be a matter of conviction based on some theory external to the Constitution.”

203 See above text accompanying rm 153-160.

204 Kennett, G, “Individual Rights, the High Court and the Constitution” (1994) 19 Melb U L Rev 581 at 589-96Google Scholar.

205 Dietrich v The Queen (1992) 177 CLR 292 at 326 per Deane J, at 362 per Gaudron J. This has become all the more significant since the High Court's decision in Kable v OPP (1996) 189 CLR 5 which applied Chapter III limitations to State courts. For a discussion of a constitutional right to a fair trial, prior to Kable, see Hope, J, “A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 FL Rev 173 at 179-189Google Scholar.