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Published online by Cambridge University Press: 24 January 2025
In October 1994, the High Court decided two cases, Theophanous v Herald & Weekly Times Ltd and Stephens v West Australian Newspapers Ltd 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 a constitutional defence to a defamation action based upon the implied freedom of political discussion previously derived from the Commonwealth Constitution in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth. In Stephens, this defence was applied in the context of an entirely State matter.
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.
1 A third case was also decided, Cunliffe v Commonwealth (1994) 124 ALR 120, which involved the implied freedom of political discussion but did not involve any State issue.
2 (1994) 124 ALR 1.
3 (1994) 124 ALR 80.
4 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 CJ, 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.
5 (1992) 177 CLR 1.
6 (1992) 177 CLR 106.
7 Mason CJ, Deane, Toohey and Gaudron JJ; contra Brennan, Dawson and McHugh JJ.
8 (1994) 124 ALR 1 at 23 per Mason CJ, Toohey and Gaudron JJ; Deane J at 63 submitted to this view to form a majority but was of the view that these conditions were not warranted by the implied freedom (see, in particular, at 60-62).
9 Mason CJ, Toohey, and Gaudron JJ with Deane J agreeing; contra Brennan, Dawson, and McHughJJ.
10 (1992) 177 CLR 1 at 75-76.
11 Ibid at 52.
12 (1992) 177 CLR 106.
13 Ibid at 142 per Mason CJ; at 168-169 per Deane and Toohey JJ; at 216-217 per Gaudron J.
14 Ibid at 142.
15 lbid at 142 per Mason CJ; at 168-169 per Deane and Toohey JJ; at 216 per Gaudron J.
16 lbid at 142.
17 Nationwide News (1992) 177 CLR 1 at 75 per Deane and Toohey JJ;Australian Capital Television (1992) 177 CLR 106 at 142 per Mason CJ; at 216-217 per Gaudron J.
18 Australian Capital Television (1992) 177 CLR 106 at 142 per Mason CJ.
19 Nationwide News (1992) 177 CLR 1 at 75 per Deane and Toohey JJ.
20 Ibid.
21 lbid.
22 Australian Capital Television (1992) 177 CLR 106 at 216-7 per Gaudron J.
23 lbid.
24 (1994) 124 ALR 1 at 12; Deane J at 44 relied on his reasons in Nationwide News(1992) 177 CLR 1 at 75 to hold that the freedom extends to all political matters.
25 (1994) 124 ALR 80 at 88 per Mason CJ, Toohey and Gaudron JJ; at 108 per Deane J.
26 Ibid at 88.
27 Ibid.
28 Nationwide News (1992) 177 CLR 1 at 75-76 per Deane and Toohey JJ; Australian Capital Television (1992) 177 CLR 106 at 142 per Mason CJ; at 168-69 per Deane and Toohey JJ; at 216-17 per Gaudron J.
29 (1994) 124 ALR 80 at 88.
30 The reference, however, to a majority of Justices in Nationwide News (1992) 177 CLR 1 seems inaccurate and puzzling when the only judgments footnoted (seen 4 at 88) from that case are those of Deane and Toohey JJ at 75-76. As outlined earlier, the other Justices in Nationwide News expressed no opinion on this issue. Hardly a majority view! There is, on the other hand, a clear majority view (see n 11) in Australian Capital Television (1992) 177 CLR 106 that the implied freedom extends to all political discussion.
31 (1994) 124 ALR 80 at 91.
32 Australian Capital Television (1992) 177 CLR 106 at 164 per Brennan J. See also McHugh J at 241-2 who held these provisions invalid as “their immediate object is to control the States and their people in the exercise of their constitutional functions”.
33 (1947) 74 CLR 31.
34 Australian Capital Television (1992) 177 CLR 106 at 162-163.
35 Especially ss 7 and 24 of the Commonwealth Constitution.
36 Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
37 (1994) 124 ALR 80 at 109.
38 Ibid at 110.
39 Ibid.
40 (1992) 177 CLR 106 at 227.
41 L Zines, “A Judicially Created Bill of Rights?” (1994) 16 Syd LR 166 at 178.
42 For example on the (xxxi) acquisitions power see: Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 119 ALR 577; Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 119 ALR 629; Re Director of Public Prosecutions; Ex parte Lawler (1994) 119 ALR 655.
43 Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
44 (1992) 177 CLR 1 at 52 per Brennan J; at 76 per Deane and Toohey JJ: “strongly arguable”.
45 See (1992) 177 CLR 106 at 217, where Gaudron J left the issue open.
46 Melbourne Corporation (1947) 74 CLR 31.
47 See Commonwealth v Bogle (1953) 89 CLR 229 at 259-60 per Fullagar J;Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372 at 378 per Dixon CJ.
48 (1994) 124 ALR 1 at 45-46.
49 (1912) 16 CLR 99 at 108-109 per Griffith CJ and at 109-110 per Barton J; Deane J also cited Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 at 550 per Dixon CJ and Nationwide News (1992) 177 CLR 1 at 73-74.
50 See Crandall v State of Nevada 73 US 35 (1867) at 44-45.
51 (1994) 124 ALR 1 at 38.
52 Ibid at 73. Would his Honour allow State interference in federal elections?
53 (1994) 124 ALR 80 at 88 per Mason CJ, Toohey and Gaudron JJ; at 91 per Brennan J; at 108 per DeaneJ.
54 Previously hinted at in Nationwide News (1992) 177 CLR 1 at 76 per Deane and Toohey JJ.
55 (1994) 124 ALR 80 at 91.
56 Ibid at 108.
57 (1994) 124 ALR 1 at 38 per Brennan; at 45-46 per Deane J.
58 Ibid at 44.
59 Covering Clause 5 is also relied upon in so far as it proclaims that the Constitution is “binding on the courts, judges, and people of every State”.
60 A R Blackshield, “ The Implied Freedom of Communication” in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232 at 266.
61 See Clause 5 of the Commonwealth of Australia Constitution Act 1900 (Imp).
62 (1912) 16 CLR 99.
63 73 US 35 (1867).
64 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 at 217 per Mason J.
65 See L Zines, above n 41 at 178-179: “Admittedly that doctrine [the Melbourne Corporation principle], as at presently worded, may not exactly fit the current situation; but it would seem to come within the same policy on which it is based and which flows from the concept of federalism.”
66 Bogle (1953) 89 CLR 229; Cigamatic (1962) 108 CLR 372; L Zines, The High Court and the Constitution (3rd ed 1992) ch 14, especially at 305-316; AR Blackshield above n 60 at 26.
67 Cigamatic (1962) 108 CLR 372 at 378 per Dixon CJ.
68 A submission of the Solicitor-General for South Australia, Mr John Doyle QC, in Stephens and Theophanous in his Outline of Submissions, at 3, para 7.
69 (1992) 177 CLR 1 at 75 (emphasis added).
70 (1992) 177 CLR 106 at 216-217.
71 Ibid at 135.
72 (1994) 124 ALR 1 at 15.
73 Ibid, especially at 14-17.
74 Ibid at 45-46.
75 Ibid at 31-38.
76 Ibid at 17-20.
77 (1992) 177 CLR 106 at 143 per Mason CJ, at 174-175 per Deane and Toohey JJ, and at 218 per Gaudron J; cf at 157-162 per Brennan J.
78 See Cunliffe (1994) 124 ALR 120 at 133 per Mason CJ.
79 (1994) 124 ALR 1 at 17.
80 Ibid at 55-61.
81 Ibid at 39.
82 Ibid at 36-38.
83 Ibid at 15.
84 Ibid.
85 Ibid, especially at 31-32.
86 Ibid at 33.
87 Ibid.
88 Ibid at 36.
89 Ibid at 65.
90 Australian Capital Television (1992) 177 CLR 106 at 231-232.
91 (1994) 124 ALR 1 at 74.
92 (1994) 124 ALR 80 at 89-90 per Mason CJ, Toohey and Gaudron JJ; at 91 per Brennan J.
93 Constitution Act 1889 (WA) and Constitution Acts Amendment Act 1899 (WA).
94 (1994) 124 ALR 80 at 88 per Mason CJ, Toohey and Gaudron JJ.
95 Constitution Acts Amendment Act 1899 (WA), ss 5, 6, 8(2)and (3), and 15.
96 (1994) 124 ALR 80 at 91.
97 Ibid at 89-90.
98 Ibid.
99 Ibid at 90.
100 Constitution Act 1867 (Qld), s 28; Constitution Act 1934 (SA), ss 11 and 27.
101 Constitution Act 1902 (NSW), s 26; Constitution Act 1934 (Tas), ss 18 and 22; Constitution Act 1975 (Vic), ss 26 and 34.
102 Constitution Act 1934 (Tas), ss 28 and 29.
103 Constitution Act 1975 (Vic), s 48.
104 Constitution Act 1902 (NSW), ss 28 and 28A; s llA refers to a “general election”.
105 Constitution Act 1934 (SA), s 77 entrenched by s 88; ands 83(1) refers to a “popular vote”.
106 Constitution Act 1902 (NSW), s 26 entrenched by s 7B(l).
107 Constitution Act 1934 (SA), s 77 entrenched by s 88; possibly ss 11 and 27 entrenched by s 8.
108 Effective entrenchment depends upon the manner and form (i) being entrenched itself (which is the case with the New South Wales and South Australian provisions) and (ii) deriving binding force from s 6 of the Australia Acts 1986, or possibly, by virtue of the principle of The Bribery Commissioner v Ranasinghe [1965] AC 172 or s 106 of the Commonwealth Constitution. Section 6 of the Australia Acts 1986 enforces manner and form provisions only if they are with respect to the “constitution, powers or procedure of the Parliament”. Any law which purports to over-ride those provisions of State Constitutions from which representative government is derived is likely to be with respect to the “constitution” of Parliament. Otherwise, the other two grounds (if accepted) are likely to apply. On manner and form generally, see G Carney, “An Overview of Manner and Form in Australia” (1989) 5 QUTLJ 69.
109 See Deane and Toohey JJ in Nationwide News (1992) 177 CLR 1 at 75: “Indeed, the Constitution's doctrine of representative government is structured upon an assumption of representative government within the States” (They cite inn 35: ss 10, 30 and 31).
110 L Zines, above n 41 at 179.
111 Wilsmore v Western Australia [1981] WAR 159.
112 A R Blackshield, above n 60 at 26.
113 The Annotated Constitution of the Australian Commonwealth at 930: “[It] may be argued that the Constitutions of the States are incorporated into the new Constitution, and should be read as if they formed parts or chapters of the new Constitution ...” But earlier in their text, Quick and Garran (at 372) seem to contradict the view that the State Constitutions derive their authority from the Commonwealth Constitution: “The States existed as colonies prior to the passing of the Federal Constitution, and possessed their own charters of government, in the shape of the Constitutions granted to them by the Imperial Parliament. Those charters have been confirmed and continued by the Federal Constitution, not created thereby.” See also Victoria v Commonwealth (1971) 122 CLR 353 at 371.
114 Commonwealth v Queensland (1975) 134 CLR 298 at 337 per Murphy J.
115 (1975) 135 CLR 337.
116 Ibid at 372. See also Victoria v Commonwealth (1971) 122 CLR 353 at 371.
117 Final Report of the Constitutional Commission (1988) Vol 1 at paras 2.104-2.105.
118 Neil, Douglas, “The Western Australian Constitution: Its� Source of Authority and Relationship with Section 106 of the Australian Constitution” (1990) 20 WALR 340 at 349-352Google Scholar.
119 (1981) 33 ALR 13.
120 (1960) 105 CLR 214.
121 (1979) 27 ALR 59.
122 (1981) 33 ALR 13 at 16-17. Burt CJ's analysis of these cases is questioned by Neil Douglas, above n 118 at 349.
123 (1992) 177 CLR 1 at 76.
124 Australian Capital Television (1992) 177 CLR 106 at 137-138 per Mason CJ.
125 See the Final Report of the Constitutional Commission (1988) Vol 1 at paras 2.104-2.105.
126 See L Zines, above n 41 at 179-180.
127 Spratt v Hermes (1965) 114 CLR 226 at 242 per Barwick CJ.
128 Teori Tau v Commonwealth (1969) 119 CLR 564.
129 (1915) 19 CLR 629.
130 Teori Tau (1969) 119 CLR 564 at 570; in Lamshed v Lake (1958) 99 CLR 132 at 142, Dixon CJ was of the view that s 116 (freedom of religion) applied to the Territories on the basis that the Territories are not to be viewed as outside the Commonwealth but rather as part of it.
131 (1992) 117 CLR 248.
132 Ibid at 272. They quoted with approval the judgment of Barwick CJ in Spratt v Hermes (1965) 114 CLR 226 at 242 that it is a question of construction whether the restriction applies to the Territories.
133 Brennan Jin Theophanous (1994) 124 ALR 1 at 38; Deane and Toohey JJ in Australian Capital Television (1992) 177 CLR 106 at 176-177; and Deane Jin Theophanous (1994) 124 ALR 1 at 45.
134 (1994) 124 ALR 1 at 38.
135 Ibid at 45.
136 (1992) 177 CLR 106 at 215-216.
137 (1994) 124 ALR 1 at 73-74.
138 (1992) 177 CLR 106 at 246.
139 McHugh J seems to adopt this argument in Theophanous (1994) 124 ALR 1 at 73-74.
140 Cunliffe (1994) 124 ALR 120 at 154-155 per Brennan J, at 161 per Deane J; cf at 132 per Mason CJ, at 194 per Toohey J.
141 Northern Territory (Self-Government) Act 1978 (Cth).
142 Australian Capital Territory (Self-Government) Act 1988 (Cth).
143 The legislatures of the Northern Territory and the ACT are incapable of amending the Commonwealth Acts conferring self-government - Northern Territory (Self-Government) Act 1978 (Cth) and Australian Capital Territory (Self-Government) Act 1988 (Cth): see R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at 422 per Brennan J; University of Wollongong v Metwally (1984) 158 CLR 447 at 464 per Mason J; and Attorney-General (NT) v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345 at 366 per Lockhart J and at 402 per von Doussa J.
144 Constitution Act 1889 (WA), s 73(2)(c) and Constitution Acts Amendment Act 1899 (WA), ss 5, 6, 8(2)and (3), and 15.
145 Gaudron J in Australian Capital Television (1992) 177 CLR 106 at 224 concluded that Part IIID of the Broadcasting Act 1942 (Cth) in so far as it regulated political advertising in Northern Territory and Australian Capital Territory elections, lacked a sufficient connection with the government of those Territories to be a law with respect to s 122 “[g]iven that the Commonwealth has enacted legislation with respect to [those Territories], in each case establishing a separate body politic, conferring a significant measure of self-government and establishing representative and democratically elected legislatures.” Why this is so is not clear, but the conferral of self-government in this form cannot be interpreted as restricting Commonwealth power under s 122.
146 Deane J in Theophanous (1994) 124 ALR 1 at 62 affirmed that the contempt powers of the superior courts and of Parliament are justifiable in the public interest.
147 Ibid. His Honour made the same comment about Parliament's power to punish for contempt.
148 Theophanous (1994) 124 ALR 1 at 62 per Deane J.