By the look of two judgments this week, it appears the calicivirus has attacked the implied-rights rabbit that the High Court pulled out of the hat in 1992 and 1994.
In 1992 the High Court struck out the detestable federal law banning political advertisements on radio and TV. It suggested there was an implied right in the Constitution for political communication. This right arose out of the Constitutional provision that the House of Representatives and Senate must be “”directly chosen” by the people. People had to make an informed choice for the constitutional provision to work and they could not make an informed choice if federal legislation prohibited people from broadcasting political advertising.
Where would it end?
In 1994 the court used the implication to strike out some of the more onerous elements of state defamation laws. It meant, for example, newspapers could publish letters from voters getting stuck into politicians without carrying the burden of proving the truth of every imputation that could be extracted from the letter.
Conservative Labor MPs, so used to exercising the power of number-crunching legislation through Parliament to satisfy vote-buying deals with factions and pressure groups were terrified. Gasp, here was an independent fountain of freedom that could stuff up the tyranny of the majority.
Heavens, the precious Racial Vilification Act might bite the dust if the High Court went too far.
On the Coalition side, there were more private mutterings. What if the court found that the words “”directly chosen by the people” in the Constitution implied one vote, one value? This would mean neat gerrymanders under which National Party-held electorates in the bush containing more sheep than people would have to be redrawn so they contained the same number of people as city electorates.
And radical Albert Langer thought there was an implication in the Constitution that he could urge people to vote in a way that offended the general principle of full preferential voting.
The Labor Government severely undermined the court’s implied-right foray by appointing a conservative-legalist Bill Gummow to the vacancy caused by the retiring Sir Anthony Mason. Further it removed the strongest libertarian, human-rights promoter on the court, Sir William Deane, by appointing him Governor-General.
From a human-rights perspective, Deane and Mason were sorely needed this week to add to the voice of Justices John Toohey and Mary Gaudron to get a majority for democratic values.
As it was, by a majority of 4-2, the court ruled that there was nothing in the Australian or Western Australian Constitutions to demand one vote, one value.
In one of the two judgments this week, the court allowed to stand Western Australian legislation that provides an in-built gerrymander for the Upper House. It carves the state into six regions: north, south and east metropolitan, south-west, agricultural and mining and pastoral. The mining and pastoral region averages 9000 electors per seat rising to a high of 34,000 for north metropolitan.
It’s a wonder there was not a west metropolitan region giving seats to yacht owners on the Indian Ocean.
Four judges ruled that “”directly chosen by the people” does not carry an implication of equal voting power. They preferred the English to the US model and said the history of representative government in England did not reveal equality of voting power.
Importantly, they said implications must be drawn from the text and structure of the Constitution, not any extrinsic source. It was almost a freezing of the meaning of the text at 1900.
Toohey and Gaudron took a different approach. They said the Constitution should be interpreted according changing circumstances. The fact that in 1900 voting was unequal (some women did not have the vote and electorates were unequal), was not an argument. Once you accept the Constitution establishes a system of representative democracy (which also embraces the states), then equality of voting power within practicable and rational limits follows, with an except for the Senate because the Constitution makes specific provision for it.
In the words of Toohey: “”Equality of voting power is an underlying general requirement in the Constitution.”
Hear, hear.
But Toohey and Gaudron are in a minority, and still in a minority if the new judge, Michael Kirby, joins their approach, which is by no means certain.
The Western Australian case shows that the earlier trend to extend implied rights has been confined to an implication of freedom of political communication and perhaps a right to legal representation in serious cases. True, those implications may get wider interpretation, but there appears little scope now for drawing of fresh implications out of the Constitution … such as rights to practice religion, freedom of assembly, freedom from unreasonable search and seizure and so on.
Even expansion of the freedom of political communication implication is less likely after this week’s judgment in Langer.
The court said the Constitution would permit Parliament to pass a law making it an offence to advocate people voting against the general requirement to number all squares consecutively on a ballot paper. This was despite another provision that deemed formal (as far as possible) a lot of ballot papers marked differently, including votes like 1, 2, 2, 2. Albert Langer sought a declaration that the law was invalid and that he should be able to advocate a vote that went 1, 2, 2, 2, or, say, 1, 2, 2 and a blank. Of course, this was a de-facto way of optional preferential voting or first-past the post voting. If it became a widespread practice it would be an anathema to majors parties, but they cannot invalidate them outright because they have a conflicting interest in making such votes valid where they do happen to occur through inadvertence or stupidity. So we have this ridiculous legislation which makes such votes valid, but makes it an offence to advocate voting that way.
Only Justice Dawson saw through it. He said if you are to have this freedom of political communication (an idea he dissented against in 1992 and 1994) it must embrace a freedom to advocate a voting method.
He wisely said freedom of communication meant more than just providing information, it meant urging that people act on the information, too … that was the essence of political communication.
The other judges thought that because the law did not prohibit advocacy of the law’s repeal or the mere provision of information about methods of voting it was valid, even though it punished active advocacy of voting in a way that the Electoral Act says is valid.
Sophistry.
These two cases will clearly mark the divide between the Mason and Brennan courts.
The four judges in the majority in the Western Australian case have taken a very legalistic, textual view of the Constitution. And the five in the majority in the Langer case show that there is no general freedom of speech in Constitution, but a very particular one.
It means, of course, that we need a Bill of Rights to set out some general basic freedoms, because we will not get much more out of the High Court, if this week’s judgments are any guide.
The majority judges have a point. It is not up to the High Court to devise a de-facto Bill of Rights out of the Constitution. It should be up to the people.
Of course, the popular mythology has it that referendums are never passed in Australia. That is probably not because of an irrational inclination to vote No no matter what, as the 1967 vote showed. Rather it is because the wrong questions are asked. And the wrong questions are invariably asked because politicians have a monopoly in framing them. Referendum questions have to be passed by both Houses.
It is very unlikely that the Executive or Legislature would pose a question that would take away any of their power; and that is precisely what a Bill of Rights would do. A lot more popular agitation is required.
A Bill of Rights is perhaps more important than the republic. After a republic is in place people will look back and wonder what the fuss was all about. But if next century we have a repeat of placing someone like Albert Langer in jail just for expressing his political belief, people will continue to wonder why our constitutional arrangements allowed such an outrage.
This week’s events show we cannot rely on the High Court to do anything about it.