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.

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>

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 МОВНА КОМПЕТЕНЦІЯ ЯК СКЛАДНИК КОМУНІКАТИВНОЇ ПРОФЕСІОГРАМИ ПУБЛІЧНОГО УПРАВЛІНЦЯ

2019 ◽  
pp. 303-307
Author(s):  
Л. С. Загребельна
Keyword(s):  
Public Administration ◽  
Practical Importance ◽  
Business Communication ◽  
The State ◽  
Linguistic Competence ◽  
Public Servants ◽  
The Public ◽  
Public Servant ◽  
The People ◽  
Inner World

At the present stage of the state-building in Ukraine, professionalisation of the public service and formation of the professional linguistic competence of public servants are top-priority issues. Proper command of the state language and the ability to use it correctly is mandatory for the people working in public administration. In this regard, an urgent need arises to clearly identify the competences of business communication and the areas of competence development of public servants generating strong interest on behalf of scientists. The rationale of the topic researched is determined by both the theoretical and practical importance of the issues related to the improvement of the professional speech of specialists working under conditions of constant communication (contact and distant, direct and indirect, oral and written, dialogic and monologic, interpersonal and mass, private and official, informational and factual, related to the inner world of the speaker). The objective of the research is to determine the ways of improving the linguistic competence of public servants. The achievement of the objective in question provides for implementation of the following tasks: • Generalise the approaches to the definitions of the notions of “communicative competence,” “linguistic competence,” “communicative behaviour,” “culture of business communication,” and “communicative professiogram”• Determine the linguistic competence as a factor required for shaping up the professional image of a public servant• Develop proposals for enhancing the linguistic training of public servants • Propose the measures to deepen the linguistic competence of public servants through the systematised linguistic communicative professiogram. The article presents a set of measures aimed at improving the linguistic competence of public administration employees. The emphasis is made on the communicative professiogram which outlines the components of linguistic competences required and the forms of enhancing the communicative culture of public servants.

Vitalising International Human Rights Law as Legal Authority: Freedom of Expression Enjoyed by Australian Public Servants and Article 19 of the International Covenant on Civil and Political Rights

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Azadeh Dastyari
Keyword(s):  
Human Rights ◽  
Political Communication ◽  
Freedom Of Expression ◽  
Legal Framework ◽  
International Human Rights Law ◽  
Political Rights ◽  
Public Servants ◽  
Public Servant ◽  
International Obligations ◽  
Civil And Political Rights

Michaela Banerji was a Commonwealth public servant when she was fired for sending up to 9000 messages on the public platform twitter criticising her employer; Australia’s human rights record; politicians; and public servants. The tweets did not disclose Ms Banerji’s name or occupation and all (except for one) tweet was sent in Ms Banerji’s private time. In 2019, the High Court confirmed that Ms Banerji’s tweets were not protected by the implied freedom of political communication in the Australian Constitution. Ms Banerji is not alone in having her ability to communicate her political views limited by her employment with the Australian public service. All Commonwealth public servants are bound by a legal framework that curtails their ability to criticise government policies. This article argues that the current regime restricting political communication by public servants in Australia is excessive and is not consistent with Australia’s international obligations under article 19 of the International Covenant on Civil and Political Rights.

The Voice to Parliament proposal and ‘the people’ of the Constitution

2021 ◽  
pp. 1037969X2110108
Author(s):  
Elisa Arcioni
Keyword(s):  
Representative Government ◽  
High Court ◽  
The People ◽  
Political Roles ◽  
The Many ◽  
The Voice ◽  
The Way

The concept of ‘the people' in the Australian Constitution is at the heart of our system of representative government. The Voice proposal in the Uluru Statement from the Heart is consistent with the way in which ‘the people’ have been understood by the High Court – both their identity and their political roles under the Constitution. This consistency is one of the many reasons to support constitutional enshrinement of the Voice.

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.

scholarly journals READING DOWN SECTION 44(i) OF THE AUSTRALIAN CONSTITUTION AS A METHOD OF AFFIRMING AUSTRALIAN CITIZENSHIP IN THE 21st CENTURY

2019 ◽  
Vol 30 (2) ◽  
pp. 79-99
Author(s):  
Noa Bloch ◽  
Kim Rubenstein
Keyword(s):  
Dual Citizenship ◽  
High Court ◽  
Members Of Parliament ◽  
The People ◽  
National Debate ◽  
Interpretive Approach ◽  
Majority Judgment ◽  
Australian Community ◽  
High Court Of Australia ◽  
Elected Representatives

Until 2017, the most recent disqualification of a member of the Australian Parliament under section 44(i) of the Australian Constitution (‘Constitution’) was Senator Heather Hill in 1998. Remarkably, since 2017, almost twenty years after Sue v Hill, ten parliamentarians have resigned or been disqualified, triggering a series of by-elections. The catalyst for this flurry of activity occurred in July 2017, when Greens senator Scott Ludlam announced that at the time of his election, he was a citizen of New Zealand and was incapable of sitting in parliament under section 44(i). He was the first of ten senators and members of parliament to be referred to the High Court of Australia in the cases of Re Canavan and later Re Gallagher on questions of eligibility under section 44(i). Eight of these parliamentarians were disqualified, sparking national debate around parliamentary representation and membership within the Australian community. Since Re Canavan and Re Gallagher and indeed well before those cases, the section had and has continued to attract popular, journalistic, parliamentary and academic criticism. Consequently, there have been calls for a referendum on section 44(i) for a significant period of time. While the authors support this call, this article reflects on the cases and develops a different interpretive approach to section 44(i) which if argued by the parties and adopted by the Court, would have rendered a referendum unnecessary. By drawing on the earlier section 41 of the Australian Constitution case of R v Pearson; Ex parte Sipka and its majority judgment, as well as drawing upon the minority judgment of Murphy J and a more recent feminist judgment written by Kim Rubenstein, one of the authors of this article, we argue that the principles of representative democracy and the sovereignty of the people could have acted as a frame to read down section 44(i). Had this approach been adopted, the Court could have effectively placed the decision around disqualification of parliamentarians around the issue of dual citizenship, back into the hands of the elected representatives

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.

Part VI Federalism, Ch.35 The Federal Principle

2018 ◽  
Author(s):  
Crommelin Michael
Keyword(s):  
British Empire ◽  
Rule Of Law ◽  
Historical Context ◽  
Representative Democracy ◽  
Judicial Power ◽  
High Court ◽  
The Rule Of Law ◽  
The People ◽  
Responsible Government ◽  
High Court Of Australia

This chapter seeks to determine the content of the federal principle in Australia from the historical context of the Constitution, the text and structure of the Constitution, and the jurisprudence of the High Court of Australia. The federal principle is a foundational element of the Constitution, along with representative democracy, responsible government, separation of judicial power, and the rule of law. The Commonwealth of Australia Constitution Act 1900 (UK) provided for the people of the six Australian colonies to be united in ‘a Federal Commonwealth under the name of the Commonwealth of Australia’, a self-governing polity within the British Empire. Hence, the chapter reveals three core ingredients of the federal principle: multiple polities, limited authority of polities, and reciprocal responsibility among polities. These ingredients are tightly intertwined.

Opening Remarks: International Association of Law Libraries Annual Course on International Law and Legal Information, Sydney, Australia, October 28, 2019

2020 ◽  
Vol 48 (1) ◽  
pp. 17-19
Author(s):  
Susan Kiefel
Keyword(s):  
International Law ◽  
Board Member ◽  
International Association ◽  
Legal Information ◽  
High Court ◽  
High Court Of Australia ◽  
Sydney Australia ◽  
Do So

It is an honor to speak at the opening of this 38th Annual Course of the IALL. It was not difficult to accept the invitation to do so, not least because it was extended by Ms. Petal Kinder. Members of the IALL will know Petal because of her close involvement with the IALL as a Board member and as President; Petal was known to me as the Librarian of the High Court of Australia, a position she held when I joined the Court. She was highly valued and respected in that role, and popular amongst judges and staff. We were saddened to hear of her passing earlier this year.

Sign in / Sign up

Export Citation Format

Share Document