Opinion

Tony Blackshield
The constitution’s implied freedom

Among the many dilemmas facing the Turnbull government are those arising from the conservative backbench pressure for the removal of restrictions on offensive language, and the almost universal pressure for restrictions on political donations. These are separate but oddly linked issues. Their shared legal background lies in an innovative High Court decision in 1994.

The Australian Constitution does not include an enforceable bill of rights. But in the 1980s Justice Lionel Murphy had argued this did not matter – that because it is a constitution for a democracy, it impliedly guarantees all the rights and freedoms essential to a democracy. His argument largely fell on deaf ears. But the 1994 decision took a tentative step towards it in relation to freedom of speech – or at least freedom of political speech.

Almost immediately, the judges who joined in that step fell to disagreeing about what it meant; but in 1997 a carefully limited version of it was reaffirmed by a unanimous court. The result was what is cumbersomely known as the implied constitutional freedom of political communication. Hedged about as it often has been by technicalities and qualifications, the implied freedom has had little impact. Ironically, its most significant scalp came in 2013, when the High Court used it to strike down part of the New South Wales attempt to regulate political donations. In the current controversy, that decision has been invoked as a major obstacle to reform.

But the obstacle does not exist. Not only was the 2013 decision narrowly limited, but a year ago it was overshadowed by an unequivocal decision that restrictions on political donations are valid.

The earlier case was brought by Unions NSW, the peak body for NSW trade unions. Both the arguments and the decision were limited to two specific provisions: a ban on political donations by anyone other than an individual elector, and a stipulation that, for purposes of enforcing a “cap” on political expenditure, the aggregate expenditure of a political party should include not only the expenditure of the party itself, but also that of any “affiliated organisation”. Justice Keane rejected these provisions as discriminating against trade unions; the other five judges rejected them for a more fundamental reason.

Usually, when a law is found to be incompatible with the implied freedom, the reasoning is that the law was enacted for a legitimate purpose, but goes beyond what is reasonably “appropriate and adapted” as a way of achieving that purpose. But in Unions NSW, the main judgement held the challenged provisions not only had no legitimate purpose, but seemed to have no purpose at all.

In particular, the idea that political donations could only be made by individual electors was rejected – not so much as legislative overreach, but simply as pointless. Why should everyone else be excluded from making political donations? Individual electors are not the only people affected by political outcomes; nor are they the only people who might have a meaningful contribution to political debate. Justice Keane gave the most telling example: Why exclude a not-for-profit group supporting the rights of asylum seekers?

Significantly, the joint judgement contrasted the provision with two other examples. A total ban on all political donations would clearly be aimed at reducing corruption, and might very well be accepted as a reasonable means to that end. The judgement was also willing to accept the actual provisions excluding donations from property developers, and from donors in the industries of tobacco, liquor or gambling – since these obviously involved “interests of a kind which requires … an express prohibition”. But no such explanation was possible for the wholesale exclusion of anyone other than individual electors.

Yet the elements thus found to be invalid were only peripheral to the overall scheme. Both the litigants and the judges assumed throughout that the NSW legislation on electoral funding was largely valid; in particular, the treatment of property developers as “prohibited donors” went unchallenged. That approach was vindicated by the decision in October last year.

This time the property developer and former lord mayor of Newcastle, Jeff McCloy, made an unsuccessful attack on the banning of donations from property developers. He also attacked the provisions imposing a cap on political donations, having resigned his office after the Independent Commission Against Corruption found he had made campaign donations well in excess of that cap. Finally, he attacked a provision banning indirect campaign contributions, since ICAC had found that one of his companies had contributed to the salary of a staff member for one of the candidates.

All three of McCloy’s arguments failed. The court found that the provisions under attack were not only compatible with the implied freedom, but were calculated to preserve and enhance it. On the exclusion of “prohibited donors” Justice Nettle dissented; otherwise, the court was unanimous. The impairment of “communication” was only slight, and its purpose was to “maintain and enhance” the very democratic system that the implied freedom is supposed to protect. It was legitimate to take action not only against actual corruption, but also against the damage to political institutions arising from perceptions of corruption – and indeed against the more insidious danger “that reliance by political candidates on private patronage may, over time, become so necessary as to sap the vitality, as well as the integrity, of the political branches of government”.

In both cases, the court emphatically denied the existence of any “right” to make donations to political parties. McCloy, for example, had argued the cap on political donations was invalid because it limited his right to “build and assert” political power. As Justice Gordon retorted, such a right would in fact undermine the essential idea “that each individual has an equal share in political power”. Justice Gageler’s reaction was similar: the argument that McCloy’s “political communication” was impeded by removing his “preferential access to candidates and political parties” was “as perceptive as it is brazen”.

In both cases, the High Court insisted that, despite the distant echoes of Murphy’s claim about “rights”, the “implied freedom” is not a “right”. It is not a matter of personal freedom for individuals to have their two cents’ worth, but only of ensuring “the free flow of ideas” – an unfettered flow of political information and arguments for the benefit of the voters.

One consequence – most clearly spelled out by Justice Keane in 2013 – is that there can be no equivalent in Australia of the orgy of political spending that has followed in the United States from the 2010 decision of the Supreme Court in the Citizens United case, where legislation prohibiting “electioneering communications” by corporations and unions was held to be unconstitutional. Essentially the Supreme Court held that the First Amendment right to freedom of speech extends to corporations. The result is a presidential campaign overwhelmed by the expenditure of corporate funds through “political action committees”. But the difference between the American guarantee of a “right”, and the Australian implication of a “freedom”, means nothing similar could occur in Australia. 

But back to McCloy. Another aspect of his case was perhaps even more controversial. The standard test of compatibility with the implied freedom uses the words “appropriate and adapted”, themselves adapted from a US Supreme Court decision in 1819. For years the court has been ambivalent on whether that test is too unwieldy, whether it should be replaced by the simpler European test of “proportionality”, and whether there is any practical difference between the two tests. But the joint judgement in the McCloy case seemed to shift decisively towards a “proportionality” test – turning ultimately on a question of “balance” between the degree of interference with the flow of ideas, and “the importance of the legislative purpose”. The more pressing the purpose, the more extensive the permissible incursions on “freedom”.

Justices Gageler and Gordon refused to join in the shift to “proportionality”. Justice Nettle also held back from it, though accepting some aspects of the majority reasoning. But – apart from Nettle’s view of “prohibited donors” – the whole court reached the same results.

The majority’s use of “proportionality” drew in part on the way such a test had been used in the earlier case of Man Haron Monis, dealing with the validity of legislative constraints on the giving of “offence”. The focus was not on Section 18C of the Racial Discrimination Act, but on section 471.12 of the Commonwealth Criminal Code, which prohibits the use of a postal service in a way that reasonable persons would regard as “menacing, harassing or offensive”.

Over a period of many months from 2007 onwards, Monis wrote letters to the families of soldiers killed in Afghanistan, denouncing the soldiers as murderers and comparing them to Adolf Hitler. In 2011 he was charged with 13 offences under section 471.12. He sought to have the indictment quashed on the grounds section 471.12 was incompatible with the implied freedom of political communication. The point was not that his letters were themselves “political communication”, but that the use of the word “offensive” made the statutory prohibition so broad and vague as to burden the freedom unacceptably.

Monis’s attempt to have the indictment quashed was rejected in NSW. He appealed to the High Court, where his case was heard by a bench of six. When the case was decided in February 2013, the court was evenly divided. Three judges held that the use of the word “offensive” cast so wide a net that it would inevitably ensnare political communication in an unpredictable “range of circumstances”. The other three held that protection of people “from the intrusion of offensive material into their personal domain” was a legitimate purpose, and that section 471.12 was a legitimate way to achieve it.

Much has been made of the fact the three judges voting in favour of section 471.12 were women, while the three who rejected it were men. It is true the judgements in the Monis case, like the current controversy over Section 18C, reflect a clear division between those who see an important value in protecting vulnerable individuals against personally hurtful attacks, and those who dismiss such an attitude as hypersensitive. Yet, even allowing for stereotypes, it seems doubtful whether the gender difference was a significant factor in the decision. It may be more significant that the three who thought section 471.12 to be valid were using a proportionality test.

The initial flirtation in 1994 with a freedom of political communication has had unexpected consequences. The idea that the making of political donations might be seen as an exercise of the protected freedom has been disposed of by the McCloy case; but the idea that a principle implied in the Constitution might extend its protection to a freedom to be offensive would clearly appeal to those calling for an amendment to Section 18C.

In any event, no one could have predicted the sequel to the Monis case. The 3:3 division in that case meant the High Court reached no decision, and the earlier result in the NSW courts was affirmed. Monis’s trial went ahead and in due course he was convicted. He appealed against the conviction on the same ground as before: that because of the breadth of the word “offensive”, section 471.12 was invalid. He applied for his appeal to be removed into the High Court.

The application came before the High Court in December 2014. The two judges hearing the application conceded that it raised an important issue, which the 3:3 division had left unresolved, and that this would normally be a compelling reason to hear his appeal. But the doctrines of res judicata and issue estoppel meant that the earlier result in his very own case was absolutely binding on him. In effect, he was told that leave to appeal on the issue would have been granted to anyone in Australia but him.

That hearing was held in Sydney, at the end of Phillip Street, on Friday, December 12, 2014. On the following Monday, Monis went back to the Phillip Street precinct and stormed the Lindt cafe.

This article was first published in the print edition of The Saturday Paper on Oct 8, 2016 as "Speech defects". Subscribe here.

Tony Blackshield
is an emeritus professor of law at Macquarie University and the co-editor of The Oxford Companion to the High Court of Australia.