Recent moves by the High Court to imply rights and freedoms into the Constitution are likely to be abruptly stopped soon … maybe with profound consequences.
The implied freedom of political communication is about to be reversed and with it will go more than a decade of constitutional innovation.
A week ago, the High Court was hearing a case brought by an opponent of duck shooting, Laurie Levy. Levy was seeking to overturn Victorian regulations that prevented him and others from retrieving dead and wounded birds for television. He said the regulations infringed his constitutional freedom of political expression.
The Victorian Attorney-General sought to defend the regulations, but without arguing against the 1994 basic cases that first expressed the legal base for the freedom of political communication: Theophanous and Stephen. Justice Daryl Dawson said that those decisions were no longer agreed to by a majority of the court and suggested they be reopened.
The case was adjourned to allow other interested parties to apply to be heard. It is now likely all state attorneys-general and some media organisations (if the court will let them) are likely to intervene.
The Theophanous ruling stated that the Constitution set up representative democracy in Australia. That required freedom of political communication to work properly. It meant that state defamation laws had to be modified to take account of this. In particular, what amounts to a requirement that publishers had to prove the truth of everything they publish no longer applied.
Instead, under Theophanous, publishers are allowed to publish political matters freely provided they do not know the material is false; they do not publish recklessly and they do not publish unreasonably. This is the constitutional defence. It means that provided journalists seek and publish the statements of the people being criticised or do not publish recklessly in the face of demonstrated falsity, they will be safe. That encourages both freedom of discussion and good journalism.
Theophanous provided a further defence for publishers publishing the political statements of others. This is the wide qualified privilege defence. It means that provided the publisher does not act with malice, the publisher can publish accurate summaries of what others say without having to prove the actual truth of what they say.
For example, an accurate quote from the head of the RSL that the Minister for Immigration is racially biased would be protected and the publisher would not have to prove that the Minister was in fact racially biased.
These defences have been very important in the practice of running newspapers, even though they have not been widely litigated. Parts of articles have run that would have otherwise been self-censored for fear of the cost of defamation actions. And it is no argument to say media organisations are rich and can afford it. Media organisation run to budgets and judgment has to be made as to whether some middling story is worth the effort and risk or whether it is better to self-censor.
Justice William Deane got it exactly right in Theophanous. He said that the prohibitive cost of proving truth and the fear of big damages on failure meant that publishers would self-censor even if they believed the truth of what they wanted to publish.
The very valuable freedom in Theophanous, which I am sure would help a lot in preventing further events like those uncovered by Fitzgerald in Queensland and perhaps the corruption by the NSW police, is now under threat for Justice Deane, sadly, is no longer on the court.
The only way part of the new freedom of speech approach can be saved is for some clever lawyer to argue that the second part of Theophanous ( the bit about protecting the right to publish what others say on political matters) does not depend on the Constitution but is part of the common law … just as native title was found to be part of common law.
Otherwise Theophanous is doomed. In Theophanous, Deane was supported by Justices Toohey and Gaudron and Chief Justice Anthony Mason against Justices Brennan, Dawson and McHugh. Mason has retired. Deane and Mason were replaced by William Gummow and Michael Kirby. It now means there is at least a 4-3 majority against Theophanous and perhaps 5-2.
Aside from opposing the freedom doctrine at the time, McHugh and Dawson have reaffirmed their opposition to the whole Theophanous approach about representative democracy and implying freedoms into the Constitution in a later judgment about whether the Constitution required electorates to be of equal size. Gummow joined them in that.
These three are the legal literalists on the bench. They argue that judges should always return to the text of the Constitution, not to political theories about it. The only things that can be implied, they argue, are necessary and obvious things that logically flow from the text itself, not from the structure of government that it sets up.
Brennan is likely to join these three in striking out Theophanous, but not take such a literalist approach. Kirby’s view is unknown. He may be thought to be a strong believer in human rights and therefore likely to uphold the freedom of speech put forward in Theophanous. But that is too simplistic. He is also a strong support of privacy, but in any event he thinks these rights are best dealt with by the legislature. If he is to uphold Theophanous is more likely because he is a classical view of judicial precedent which holds that the law must be built up from past cases.
The duck-shooters’ case, when it comes before the court is likely to mark the end of a period of innovative judicial thinking in the High Court that centred around Mason. That thinking saw the central government gain through a wider interpretation of the foreign-affairs and corporations powers, but both the federal and state executives and legislatures lose power to a range of what can loosely be called human rights or legislative no-go areas. It also saw a distinct Australianisation of both constitutional and common law, in particular a strong view that the fountain of sovereignty in Australia is the people … not a statute of the British Parliament that they happen to approve in referendums late last century.
The new majority is likely to be more literalist and take the traditional view that the Constitution is, in legal theory, a statute of the British Parliament.
In the words of McHugh this year: “”In the late 20th century is may not be palatable to many persons to think that the powers, authorities, immunities and obligations of the federal and state parliaments of Australia derive their legal authority from a statute enacted by the Imperial Parliament, but the enactment of that statute containing the terms of the Constitution is the instrument by which the Australian people have consented to be governed.”
And further: “”It is the duty of the justice of this court to apply its text and not the judicial decisions on the text.”
That last sentence will justify the sweeping away of earlier decisions of the Mason court and the construction of a new conservative, literalist majority.
Hitherto, there was significant opinion on the court, especially among legal conservatives, that major cases should not be overruled lightly. The best example of this was former Chief Justice Harry Gibbs in the Territory senators cases in the 1970s. First time around he was part of a minority that said the Constitution would not permit Territory senators. Then some judges retired and the new judges looked like they had the numbers and a new case was brought … just like what is happening with Theophanous now. Gibbs to his credit said that allowing Territory senators was now the law and would not overrule the earlier judgment even though he had been against it at the time.
Perversely, much of the new conservative, literalist majority are Labor appointees: McHugh and Gummow. Dawson (a Fraser Government appointee) will be with them and also with them from time to time, depending on the issue, will be Labor appointee Kirby and the Fraser Government appointee Brennan.
On the other hand, the core of the old majority that had given wide policy power to the central government, Australianised the Constitution and gave it a much stronger human-rights element were appointees of a conservative government: Mason and Deane.
This change in the ideological outlook of the High Court may not be such a bad thing. If people realise they are governed by a British statute and that it contains virtually no basic rights, they might want to do something about it. If the court is to turn away from using the judicial ingenuity that implied rights into the Constitution, then those rights need to be expressed by constitutional amendment with stated freedoms of speech, assembly, religion, trial by jury for serious matters and so on. And the Constitution will need to be expressed as a purely Australian document, because as McHugh himself recognises … his legal theory is unpalatable to many people.