A look at how the Australian Constitution protects political advertising.
It’s election campaign time again in Victoria, and that means corflute signs are popping up all over the state, telling voters to vote for particular candidates. And, as with every election, this means another round of people stealing and defacing corflute signs. Similarly, every election raises questions about how governments should regulate political advertising. This was an issue that Victoria had to grapple with prior to the 2022 federal election. But these regulations are subject to the Australian Constitution.
It may surprise you to learn that corflute signs are actually protected by the Constitution as political speech, or more accurately political communication. Although Australia has nothing approaching the freedom of speech protections of the 1st Amendment of the US Constitution, we do have some. Although this ‘implied freedom of political communication’ dates back to judgments by Murphy J in the late 1970s, a majority of the High Court didn’t accept it until 1992, in Australian Capital Television Pty Ltd v Commonwealth and Nationwide News Pty Ltd v Wills, and it was unanimously recognised in Lange v ABC (1997).
The Constitution is somewhat famous (or infamous) for having relatively few expressly stated rights. However, there are some ‘implied rights’ that are considered to be a ‘necessary incident’ of the Australian government. The High Court has read between the lines of the Constitution and determined that the right to vote and the implied freedom of political communication are essential if Australia is to have a democratically elected government. If Australians can’t freely vote in elections, and freely discuss political issues and seek to bring about change, then it isn’t really a democratic system. But, as seen in Lange, it isn’t a ‘personal right’ to freedom of speech generally, in the style of the 1st Amendment, but rather only operates to limit the government’s ability to limit political communication.
As a side note, whether there is an express or implied right to vote is still being debated, so for those interested check out ‘An Express Constitutional Right to Vote? The Case for Reviving Section 41’ by Jonathan Crowe and Peta Stephenson.
Because the High Court has found a constitutional protection for forms of political advertising like corflute signs, the Commonwealth, State, and Territory governments are stuck in a difficult position regarding regulating them. Any law that is inconsistent with the Constitution is obviously invalidated. This is because the Constitution is the supreme law of Australia; everything below it is subject to it.
Taking the implied freedom at face value, there is no lawful way to regulate political campaigns using corflute signs. However, the High Court is reluctant to let these constitutional rights go unregulated. This is why there is debate over a constitutional guarantee of the right to vote, as governments argue that there are times when such a right must be limited for some individuals, like criminals in prison. Even Section 92 of the Constitution, which says that trade across state borders “shall be absolutely free” from regulation by State governments, is not unlimited. As early as 1916, Griffith CJ said in Duncan v Queensland, p. 573, that freedom does not equal anarchy; Australians are “an absolutely free people, but that does not mean we are not subject to law.”
The High Court decided that there should be a test to determine if a law ‘unnecessarily burdened’ the implied freedom. The court developed a two-stage test in Lange, asking first if the implied freedom was ‘burdened’ (limited) by the law in question, and if so, was the law; ‘reasonably appropriate’ and adapted to serve a legitimate end, especially the constitutional principles of representative and responsible government. This is effectively a balancing act, weighing the importance of the right against the need for limitations. Other tests have been proposed, but this test enjoys the most support. Under this approach, the High Court has gone so far as to say, in Coleman v Power (2004), that a law student circulating flyers with the title ‘Get To Know Your Local Corrupt Cops’ was protected.
This test was considered by the Victorian Supreme Court in March 2022, in Badger v Bayside City Council. The plaintiff here was Keith Badger, the campaign director for Zoe Daniel in the seat of Goldstein. Although local governments in Victoria are responsible for setting rules about the use of corflute signs, Bayside argued that if a sign is erected before the election is called, it is not a political sign, but rather is a ‘promotional sign’ for an ‘event,’ which falls under state law, which requires a permit. They therefore removed signs erected without a permit, which Keith Badger contested. Dixon J, who heard the case, ruled that because the event in question was an election, the plaintiff was entitled to have the signs up for three months without a permit.
Despite winning on this point, the plaintiff asked the court to determine if the law ‘unnecessarily burdened’ the implied freedom anyway, because as there was no date for the election at that time, the plaintiff was willing to keep the signs up until the election, even if it was more than three months. While Dixon J left the question open, he said the following, at para [85].
“[I]n my view, signs identifying and promoting the candidates for an election appear central to the implied freedom of political communication. It is a mechanism by which the electorate is informed, or communicates, about the available alternative candidates for public office, and it contributes to the system of representative and responsible government under the Constitution.”
Implicitly referencing McCloy v New South Wales (2015), where a proportionality test was developed, he suggested that “there is likely to be an alternative measure … which is equally practicable and at the same time is less restrictive on the freedom and is obvious and compelling.” His suggestion was to exempt corflute signs from the land development scheme that requires permits.
But, at the same time, there are also a lot of common sense restrictions on corflute signs. For example, governments seek to limit the number of signs that each candidate has a polling booth, so that all candidates have the opportunity to display their signs. The justification behind this is that, without these restrictions, some candidates could overwhelm the booths with their corflute signs. This would prevent other candidates, especially independents and minor parties who don’t have the same financial resources as major parties, from not getting a fair chance. Although this is a burden on the implied freedom, it is in the interests of the voters to do so, and it upholds Australia’s democratic principles. This is what Griffith CJ was getting at when he commented on the difference between freedom and anarchy.
As the implied freedom continues to be developed, it is likely that we will see more challenges to political advertising laws. One question that is already being asked is whether the implied freedom of political communication can be limited by anti-misinformation laws. And as something that affects every Australian at election time, this is definitely something to keep an eye on. Watch this space.
Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.
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Sources:
Badger v Bayside City Council [2022] VSC 140.
Coleman v Power (2004) 220 CLR 1.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Duncan v Queensland (1916) 22 CLR 556.
Jonathan Crowe and Peta Stephenson, ‘An Express Constitutional Right to Vote? The Case for Reviving Section 41’ (2014) 36(2) Sydney Law Review 205-230.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
McCloy v New South Wales (2015) 257 CLR 178.
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
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