The High Court’s judgment on Wednesday on the broadcasting ban has been greeted enthusiastically as upholding the “”right to free speech”.
Alas, it does no such thing. The reasoning is not directed at all towards an individual’s right to free speech, nor even to the right of a commercial television station to broadcast freely.
The judgment has also been greeted as laying the groundwork for some implied Bill of Rights in the Australian Constitution. Once again, it does no such thing.
The High Court followed the English legal tradition; not the American one _ as it has done over the past 90 years. Every time someone has argued before the court that the Australian Constitution grants some individual right, the court has invariably knocked them back. A right to trial by jury, a right to freedom of religion, a right to vote and now the right to freedom of speech have not been found in the Constitution by the court.
The reasoning in Wednesday’s judgment was based not around freedom of speech, but around the limits of the Commonwealth’s power to legislate.
The argument ran as follows: Section 51 of the Constitution gives the Commonwealth Parliament power to make laws “”with respect to” certain things, including post, telegraph and other like services. The “”like services” includes broadcasting. That power is made “”subject to” the rest of the Constitution. The Commonwealth passed a law saying you cannot broadcast political advertisements.
Normally that would be a law “”with respect to” broadcasting, just as a law prohibiting the erection of grey lighthouses is a law with respect to lighthouses. However, the rest of the Constitution provides for a structure of representative and responsible government. This means representatives are chosen by the people and are responsible to them. The court held that that implied there must be freedom of communication between electors, elected and candidates for election. Without the communication voting is meaningless.
However, the freedom of communication was not unlimited. It could be regulated and controlled to preserve other public interests. For example, it could prohibit harassment of voters with how-to-vote cards near polling booths. The court had to balance the extent of the restriction on the communication with the pursuit of the other public good. In this case it held the virtual total prohibition on the broadcast of political advertisements went to far when balanced against the aim of reducing the possibility of corruption caused by the necessity to raised vast sums of money to run an electronic election campaign.
And that was the extent of the reasoning. There were no glorious statements, Tom Paine-style, of the right of individuals to express their point of view about politicians and the political process.
The judgement was restricted to the narrow point that the Commonwealth Parliament had no power to make a law imposing a sweeping ban on the broadcast of political advertisements.
The judgment should (but won’t) put paid to exaggerated claims by the Samuel Griffith Society and states’ righters that the High Court is entering some new phase of social engineering and eroding the fundamental structure of the Australian federation by granting itself power to carve a Bill of Rights out of the existing Constitution.
An interesting question arises which illustrates the limited nature of the High Court’s decision. What if a state parliament passed a law prohibiting the publication in a newspaper of political advertisements for state elections? The states’ legislative power, unlike the Commonwealth power, is not made subject to the creation of representative and responsible government. Therefore, it seems a state prohibition would be valid. There would be no individual right to enforce against a state.
The freedom of communication that the High Court found in the Constitution was a very limited one. Justice Brennan said it was essential to representative democracy, but would not “”override all interests which the law would otherwise protect. For example, it is a substantial restriction on freedom of political communication to make the publication of matter defamatory of a public figure unlawful unless the defamer can plead and prove justification ÿ(subs square bkts plse) (truth) or a defence of qualified privilege. Yet our law has not exposed public figures to the risk of defamation to the same extent as the (subs square bkts plse) (US) Bill of Rights.”
This, indeed, is the nub of it. And this is why we need a Bill of Rights in Australia. Clearly, the High Court cannot and should not wander off on some self-appointed task of creating a Bill of Rights out of present constitutional provisions and any terms it might find implied in them. The people of Australia voted for the present Constitution which embraces a High Court of a particular sort: one that applies legal reasoning, not social or political reasoning, one that applies the law as it is, not as it thinks it should be.
If Australians want a different sort of court, they must vote for a stated Bill of Rights in the Constitution. Then the High Court would be given a mandate to reason on political, economic and social grounds, in addition to legal ones.
That has not happened, and the court on Wednesday made it clear that it was sticking to its 90-year tradition of not creating US-style Bills of Rights. If the people want it, it is for the people, not the court.
That said, the need for an explicit freedom of speech provision in the Constitution is clear. The implicit one found by the High Court on Wednesday is not strong enough. The court said “”the freedom cannot be understood as a personal right”.
Surely, in a grown up democracy that is what we want: a personal right to freedom of speech.
In recognising freedom of communication, the court limited it to communication in relation to public affairs and political discussion. Most of the judges specifically said the freedom was subject to present defamation laws.
The trouble with that view is that the freedom is for practical purposes restricted to the communication of ideas and policies and abstractions. It fails acknowledge that public affairs are enacted by individuals in public life who engage in conduct, openly and behind closed doors. For truly free discussion of political affairs, citizens and the media that publishes to them must have the right to question the conduct of public figures. Under present defamation laws, public figures are under no obligation to respond to those questions. Then can just say: “”prove it”. And the media after making careful and diligent inquiries and not acting maliciously is left with the threat of heavy damages if it can’t and very high costs in any event. Thus, they are intimidated against publication.
A freedom-of-speech clause in the Constitution would protect media and citizens who, after diligent inquiry, publish defamatory matter of public figures. The public interest in the scrutiny of the conduct of public figures with respect to their public duties should outweigh the individual right, bearing in mind the substantial safeguard of a requirement for diligent inquiry before publication.
Wednesday’s judgment came nowhere near that sort of right to free speech. Nor could it. The only way to get freedom of speech is with a Bill of Rights. So, too, with freedom of assembly and religion and for rights to trial by jury for serious offences and protection against unreasonable search and seizure.
The related judgment that came down on Wednesday does not change the argument. It struck out a Commonwealth law that made it an offence to insult members of the Industrial Relations Commission. An article by Maxwell Newton in The Australian mentioned “”a corrupt and compliant judiciary in the official Soviet-style Arbitration Commission”.
The fact that the court struck down a law that made it an offence for Mr Newton to say that should not be seen as a triumph of free speech. Once again, the court merely said the Commonwealth had over-stepped its constitutional law-making power, on the same lines as the broadcast case. Mr Newton got no individual right to publish his opinion. It would still be open for the commissioners to sue the newspaper for defamation, for example.
In short, both judgments just limited the Commonwealth’s power; they gave no extra rights to individuals.