By Paul Gregoire and Ugur Nedim
The issue of rights has been front and centre over the last few months, as the outbreak of the COVID-19 Delta variant has resulted in state governments ordering populations into lockdown to prevent its spread, which some citizens assert is an infringement upon their basic freedoms.
Yet, rights guarantees are few and far between in this country, as Australia remains the only western liberal democracy without laws that uphold the rights of citizens. And such freedoms would usually be contained in a piece of legislation known as a bill or a charter of human rights.
Those that drafted the Australian Constitution chose not to insert a bill of rights within it. And the document guarantees very few. Those contained within it include the right to vote, freedom of religion, the right to trial by jury and the requirement that the state acquires property on just terms.
On 30 September 1992, the High Court found in two separate cases – Australian Capital Television versus the Commonwealth and Nationwide News versus Wills – that there is an implied right to freedom of political communication within the founding document.
This implied right, however, is not a personal right to freedom of speech. Rather, the court determined that it’s a restriction upon the executive and legislative branches of government from infringing upon the freedom to discuss government, its institutions and political matters.
The implied right
Of the two 1992 High Court cases involved in establishing that there is a right to freedom of political communication implied in the Australian Constitution, the Australia Capital Television decision is most often cited.
The case involved Australian Capital Television seeking a declaration that the Political Broadcasts and Political Disclosures Act 1991 (Cth) was invalid, as it established that broadcasting of political adverts on electronic media was prohibited in the leadup to an election at any level of government.
The majority of the court found that the executive and the legislature cannot place restrictions on political communication, and, therefore, this extends to their power to pass laws under section 51 of the Constitution, meaning laws that infringe upon the implied freedom are invalid.
The implied freedom is based upon the principle of a representative democracy that’s established via section 7 of the Constitution, which sees senators “directly chosen by the people”, as well as section 24, which provides that the public choose the members of the House of Representatives.
So, in order to ensure the maintenance of a representative democracy it’s essential to permit freedom of political communication, as it allows citizens to cast effective and informed votes to establish a functioning parliament.
It’s limitations
The 1997 High Court case Lange versus Australian Broadcasting Corporation served to place some limitations upon how far this implied right of political communication extends. The case challenged the findings of two 1994 High Court cases, which had constitutionalised defamation laws.
One of these cases was Theophanous versus Herald & Weekly Times. It involved the High Court ruling that prejudicial remarks made in a newspaper article regarding federal MP Andrew Theophanous were permissible as they were political in nature and, therefore, protected under the implied freedom.
The two 1994 cases served to establish a constitutional defence against defamation when damaging remarks had been made against someone as part of political discourse.
However, former NZ prime minister David Lange challenged this when he took the ABC to court over remarks it had made about him.
In Lange, the full bench of the High Court clarified that the implied freedom of political communication was a right that extended beyond the period of elections to ensure that a well-functioning democracy is maintained at all times.
However, the court also qualified that this right is not absolute, as it only extends to matters that are indispensable to maintaining representative democracy. Their Honours found that this right to communication does not extend to malicious statements.
This decision altered the defence of qualified privilege, which permits those in positions of authority to make statements usually considered slanderous, as the court established a measure that considers whether it reasonable for a publisher to print potentially defamatory statements.
The right upheld
Former Australian Greens leader Bob Brown exercised the implied right to freedom of political communication, when he took the Tasmanian government to the High Court in 2017’s Robert James Brown & Anor versus the State of Tasmania.
Brown argued that anti-protest laws enacted within the Workplaces (Protection from Protesters) Act 2014 (TAS) infringed upon the implied right, as they were encroaching upon the ability of activists to conduct demonstrations on business premises, which included forestry lands.
The issue stemmed from protesters being arrested and charged with offences under the Protesters Act for demonstrating on privately owned forestry land and taking video footage of loggers. Although, the charges were later dropped.
The majority of the High Court outlined that the implied freedom of political communication, included peaceful protest. And it found that the laws did encroach upon this right as there was an ambiguity over what constituted a business premises.
The justices ruled that the Protesters Act placed a dramatic burden upon political communication due to the excessive powers it bestowed upon police and they further set out that the laws were discriminatory as they only targeted activists in this respect.
A bill of rights
In Australian Capital Television versus the Commonwealth, it was considered that the reasons the drafters of the Constitution failed to incorporate a bill of rights with it was that it was unnecessary because representative government bestowed enough power upon voters to ensure their rights.
However, in practice this assumption is far from the case.
The need for a bill of rights is a growing concern for many Australians, as the understanding grows that at the federal level there are no such protections to curb the government from enacting laws that infringe upon basic rights that many take for granted, even though they shouldn’t.
Parliamentary privilege, despite currently granted under the Parliamentary Privileges Act 1987, Prior to this Act (and still current) these privileges are granted to politicians under the Bill of Rights 1688. According to the Australian Government Attorney –General’s Department website:
The Declaration of Rights 13 February 1689 [Bill of Rights 1688]
…
9. That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament.
It sets down one of the primary privileges of Parliament which is still relevant in the modern context for the following reason stated by Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 35:
§ ‘a Member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences.’
Further to this I would draw your attention to the following High Court of Australia case;
Port of Portland v State of Victoria [2010] HCA 44 ( 8 December 2010)
In this case all 7 Justices confirm the validity of the Imperial Acts Application Act 1980 and the Bill of Rights 1688, thus enshrining in law the validity of the Bill of Rights 1688 in Australia.
Even the Australian Government Australian Law Reform Commission website states:
“The rights, freedoms and privileges set out in the Terms of Reference have a long and distinguished heritage. Many have been recognised in Australia, England and other common law countries for centuries. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the Magna Carta in 1215,[1] the settlement of parliamentary supremacy following the Glorious Revolution of 1688 and the enactment of the Bill of Rights Act 1688.[2] They were recognised and developed by the courts and some were declared and affirmed by historic statutes and further developed by modern legislation.”
This is validated by The Hon Robert French AC, Chief Justice of the High Court when he stated in his speech ‘The Common Law and the Protection of Human Rights’ (Speech, Anglo Australasian Lawyers Society, Sydney, 4 September 2009);
“many of the things we think of as basic rights and freedoms come from the common law and how the common law is used to interpret Acts of Parliament and regulations made under them so as to minimise intrusion into those rights and freedoms.”
It should be noted that when the Bill of Rights 1688 was enacted, a clause was added such that this bill could never expire or be repealed “shall be declared enacted and established by authoritie of this present Parliament and shall stand remaine and be the Law of this Realme for ever”
I would say we already have a Billnof Rights set by legal precedent.