Part VII Rights, Ch.39 Expression

2018 ◽  
Author(s):  
Stone Adrienne
Keyword(s):  
Political Communication ◽  
Constitutional Law ◽  
Freedom Of Expression ◽  
High Court ◽  
Full Picture ◽  
High Court Of Australia ◽  
The Way

This chapter traces the way in which freedom of expression is recognized in Australian constitutional law. The absence of a provision protecting freedom of expression is just one aspect of a widely noted feature in the Australian Constitution, yet the full picture is considerably more complicated. Freedom of expression has long had a foothold in Australian constitutional law. In 1992, the High Court of Australia developed a doctrine known as ‘the freedom of political communication’ which, to some extent, operates like a guarantee or right of freedom of expression. The chapter considers the extent to which the freedom of political communication resembles an explicit and generally expressed right of freedom.

scholarly journals FOI and the Freedom of Political Communication

2007 ◽  
Vol 12 (1) ◽  
pp. 193 ◽  
Author(s):  
Anthony Gray
Keyword(s):  
Political Communication ◽  
Political Freedom ◽  
Freedom Of Information ◽  
Constitutional Rights ◽  
Representative Government ◽  
High Court ◽  
Important Decision ◽  
High Court Of Australia ◽  
Elected Representatives

<p>There are very few freedom of information cases that have been heard by the High Court of Australia and this article discusses freedom of information rights in the context of the Court’s recent important decision in McKinnon. After reviewing the judgments in the case, the author advocates that freedom of information rights must not be seen in isolation, but in the context of broader constitutional rights, including the implied right to political freedom of communication, as well as the doctrine of representative government. It is suggested that the effect of the decision is to unduly narrow the rights citizens would otherwise have under freedom of information laws, and is contrary to the spirit of such laws. It compromises the ability of the sovereign people to exercise that sovereignty over their elected representatives. Placing freedom of information rights into this broader constitutional perspective, the decision can be seen as out of step with the Constitution and its prescribed system of government. More broadly, it is considered that freedom of information principles must be interpreted within the existing constitutional rights framework.</p>

All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia

2019 ◽  
Vol 47 (4) ◽  
pp. 551-582
Author(s):  
Evelyn Douek
Keyword(s):  
Political Communication ◽  
Separation Of Powers ◽  
Order Effects ◽  
High Court ◽  
Constitutional Culture ◽  
Institutional Costs ◽  
Judicial Reasoning ◽  
Theoretical Question ◽  
High Court Of Australia ◽  
First Time

In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘ compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option.

Freedom of Political Communication in Australia

1996 ◽  
Vol 45 (2) ◽  
pp. 392-401
Author(s):  
Timothy H. Jones
Keyword(s):  
Political Communication ◽  
Freedom Of Expression ◽  
Public Affairs ◽  
Representative Democracy ◽  
The Political ◽  
Representative Government ◽  
High Court ◽  
Australian Capital ◽  
Political Processes ◽  
The People

In three important decisions,1 handed down on the same day in October 1994, the Australian High Court continued its exploration of the implied constitutional guarantee of freedom of political communication. Two years previously, in the judgments in Nationwide News Pty Ltd v. Wills2 and Australian Capital Television Pty Ltd v. The Commonwealth,3 a majority of the High Court had distilled an implication of freedom of political communication from the provisions and structure of the Australian Constitution.4 This was not an implication of freedom of expression generally, since it was derived from the concept of representative government which the majority considered to be enshrined in the Constitution: “not all speech can claim the protection of the constitutional implication of freedom … identified in order to ensure the efficacious working of representative democracy and government”.5 The extent of this implied constitutional guarantee was left rather unclear, since a number of different views were expressed. As Justice Toohey has now explained,6 there were two possibilities. The first was a more limited “implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government”. The second was a rather more expansive “freedom to communicate in relation to public affairs and political matters generally”. In the recent trilogy of cases a majority of the High Court was prepared to endorse the second of these alternatives.7 In Cunliffe v. The Commonwealth Chief Justice Mason concluded that it would be too restrictive to limit the implied freedom to “communications for the purposes of the political processes in a representative democracy”.8

scholarly journals Constitutional ‘borrowing’ and freedom of expression: Can Australia learn from the US First Amendment?

2019 ◽  
Vol 44 (1) ◽  
pp. 56-62
Author(s):  
Jemimah Roberts
Keyword(s):  
Political Communication ◽  
First Amendment ◽  
Free Speech ◽  
Potential Role ◽  
Freedom Of Expression ◽  
High Court ◽  
The Us ◽  
Reflective Approach

This article explores the potential role of US free speech doctrine as a source of learning for the High Court in developing its own jurisprudence in a broadly analogous area – the Australian (implied) freedom of political communication. The author argues in favour of a critical and self-reflective approach to this question, where the comparative utility of foreign doctrine is assessed by reference to its use in advancing Australian-specific constitutional commitments and inquiries. The article concludes with a brief worked account of how this might be applied to ‘structural' versus ‘autonomy' driven US doctrine.

Public Servants and the Implied Freedom of Political Communication

2021 ◽  
Vol 49 (1) ◽  
pp. 3-39
Author(s):  
Anthony Davidson Gray
Keyword(s):  
Political Communication ◽  
Sufficient Evidence ◽  
Representative Government ◽  
Public Servants ◽  
High Court ◽  
Government Functions ◽  
Public Servant ◽  
The People ◽  
High Court Of Australia ◽  
Do So

The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.

The Reception of Structured Proportionality in Australian Constitutional Law

2021 ◽  
pp. 0067205X2110165
Author(s):  
Murray Wesson
Keyword(s):  
Political Communication ◽  
Constitutional Law ◽  
Case Law ◽  
Global Model ◽  
Close Reading ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
High Court ◽  
German Constitutional Court

A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

Media Baru dan Fenomena Komunikasi Politik pada Pemilukada di Provinsi Banten 2011

2011 ◽  
Vol 3 (2) ◽  
pp. 23-34
Author(s):  
Afdal Makkuraga Putra
Keyword(s):  
New Media ◽  
Political Communication ◽  
Communication Technology ◽  
Freedom Of Expression ◽  
New Order ◽  
Surprising Result ◽  
Information And Communication ◽  
Use Of Internet ◽  
New Phase ◽  
Fair Balance

Political system in Indonesia after New Order regime has entered into a new phase, which is both fundamentally and practically different. With the growth of freedom of expression and the rise of information and communication technology (ICT), the use and practices of political communication is also striking a fair balance, two-ways direction, no longer dominated by government-only apparatuses. The use of internet and New Media in political communication realm has been pioneered since 1997, and has been growing ever since, thanks to the new practices of local election (Pilkada). This paper will address firstly, the theoretical framework of political communication in e-Democracy, and secondly, the application of New Media (website, blog, and social media sites) in local-based political communication, namely Pilkada in Banten at October 23, 2011. Having analysed the phenomenon in question, a surprising result appears. Even though all candidates of Governor and Deputy Governor of recent Pilkada Banten have used New Media as their communication and campaign media, nevertheless the interactivity factor embedded within those “New Media use” are largely neglected. Keywords: e-Democracy, political communication, New Media, interactivity.

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