The shift away from freedom of speech will be problematic for Pauline Hanson in her discrimination case.
In response to her defeat in a discrimination case brought by Senator Mehreen Faruqi, Senator Pauline Hanson has attacked section 18C of the Racial Discrimination Act 1975 (Cth) for silencing her freedom of speech.
However, the One Nation leader's repeated references to free speech invoke American ideals, rather than Australia’s implied freedom of political communication.
The implied freedom, although first properly accepted by Chief Justice Mason in Australian Capital Television v Commonwealth (1992), the first hints of it can be seen in the First Territory Senators’ Case (1975).
Although seemingly completely unrelated to the implied freedom, this case on Senate representation for the Northern Territory and Australian Territory saw Justices Mason and Murphy refer to democratic principles embedded in the Australian Constitution, specifically sections 7 and 24.
Sections 7 and 24 say that members of both Houses of Parliament must be “directly chosen by the people.”
Justice Murphy referred to the “democratic theme of the Constitution” and commented that the “Houses [of Parliament] are our most important political institutions, the principal organs of our democracy; their decisions are vital to every Australian.”
Early approaches to the implied freedom of political communication saw it as something similar to the US First Amendment.
Justice Murphy’s conception of the implied freedom was very broad, and he preferred a ‘free speech’ approach. In Miller v TCN Channel Nine (1986), he said that “such freedoms are fundamental to a democratic society … [and] are a necessary corollary of the concept of the Commonwealth of Australia.”
In Nationwide News Pty Ltd v Wills (1992), three judges, Justices Deane and Toohey, and Chief Justice Mason, cited US Supreme Court cases. Chief Justice Mason and Justice Dawson preferred the term ‘freedom of expression,’ reflecting that the implied freedom was weaker than the First Amendment, partly because it wasn’t expressly mentioned in the Constitution.
This ‘freedom of expression’ argument was expanded upon in two 1994 cases, Theophanous v Herald & Weekly Times and Stephens v West Australian Newspapers. These created a ‘constitutional’ defamation defence for news outlets for repeating certain otherwise defamatory comments when covering political matters that the public had a political interest in.
Lange v Australian Broadcasting Corporation (1997) scrapped that defence, and saw the High Court course-correct its approach to the implied freedom.
The implied freedom retained its constitutional status, but now transformed from a US-style ‘individual right’ to a protection against legislative limitations on a person’s right to participate in political discourse. It wasn’t a ‘right to,’ but a ‘protection from.’
For the first time, Lange saw all 7 judges accept sections 7 and 24 as the specific basis for the implied freedom, given that they refer to democratically electing politicians, echoing Justices Mason and Murphy in 1975. In fact, that might be why Mason, as Chief Justice in 1992, was the first ‘mainstream’ judge to accept the implied freedom.
As early as Nationwide, Justices Brennan, Gaudron, and McHugh, all writing separately, had begun developing the modern test for the implied freedom that was unanimously adopted in Lange:
Does the law ‘effectively burden’ the implied freedom? If yes,
Is it “reasonably appropriate and adapted to serve a legitimate end” and does it uphold “the constitutionally prescribed system of representative government?” If yes, it is valid.
This test was expanded upon in McCloy v New South Wales (2015), which was covered in Common(wealth) Knowledge #26.
Lange’s entrenchment of the implied freedom in sections 7 and 24 has been constantly upheld by subsequent rulings.
A legitimate law must be a law that upholds democracy. A legitimate law must be voted on by legitimately elected politicians. For an election to be legitimate, it must be democratic. This means that Australians must be freely able to discuss political issues.
The ‘freedom of expression’ from Nationwide is long gone. Today, it is seen as an “equality of opportunity” to participate in the democratic process. This is why Justice Steward said that racist comments may scare some Australians into silence, denying them that opportunity.
The narrower scope of the implied freedom reflects the fact that Westminster systems have never accepted the existence of absolute rights. Rights are usually seen as being part of the common law, and parliamentary sovereignty means that they can be overruled by legislation.
This is partly why the Constitution contains so few rights.
Even section 92, which guarantees an “absolutely free” right to engage in “trade [and] commerce” across internal borders, hasn’t been interpreted literally. In Duncan v Queensland (1916), Chief Justice Griffith, who helped write the Constitution, said that ‘absolutely free … does not mean that we are not subject to law.” If taken literally, it would mean anarchy, and the Constitution cannot authorise anarchy.
In Miller, Justice Murphy also wanted a stricter test for section 92.
It should be recognised that the transition of the implied freedom is still a contested issue. One issue that has been raised, and why the original proposal to limit section 18C to ‘harass’ was put forward, is the difficulty is defining ‘offend, insult, humiliate.’
A case often pointed to is Brutus v Cozens [1972], from the British House of Lords. There, having considered a number of dictionary definitions of the word ‘insult,’ Lord Reid concluded that their inconsistency means that “there can be no [such] definition.”
References to this tend to overlook the next sentence: " An ordinary sensible man knows an insult when he sees or hears it.”
However, it is true that the court rejected a two-step test that required “deliberate behaviour which is intended or likely to give offence,” and that it is “contemptuous” towards the victim/s.
The essence of the broad test complaint about section 18C is that, in the words of Augusto Zimmermann, an ambiguous definition means “a judge may exercise an excessive level of personal discretion, thus passing entirely subjective judgements on the value, morality, or ethics of any statement.”
Importantly for this argument, section 18C does require a two-step test that has similarities to the test rejected in Brutus.
Given Justice Stewart’s regular criticisms of Senator Hanson’s character, including calling her ‘racist,’ it is likely that this angle will be raised on appeal.
A free speech appeal brought by Senator Hanson would likely refer to the two 1994 cases and Justice Murphy’s earlier judgments. This is ironic, because in 1974 Senator and Attorney-General Lionel Murphy was instrumental in drafting the Racial Discrimination Act.
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