1. Constitutional provisions (ss. 7, 24, 64 and 128) reveal an intention to create a representative form of government
2. Freedom of communication is essential to the functioning of a representative form of government
There is a need for communication of political matters between the representative and the represented and among the represented
3. Thus, there is an implied freedom of political communication
Freedom to communicate information, opinions and ideas about all aspects of the government, including the qualifications, conduct and performance of those involved in government, whether legislative, executive or judicial
Only through communication can citizen’s criticise government decisions and actions, seek to bring about change, call for action ad influence the elected representatives
If there was no such freedom, government would not be responsive to the needs and wishes of the people
No limit to the range of matters that may be relevant – extends to all matters of public affairs and political discussions
Lange v ABC (1997) – the freedom is derived from the words ‘directly chosen by the people in ss.7 & 24
What amounts to communication?
Speech, writing, photos an cartoons clearly amount to communication
Actions: Levy v Victoria (1992) - Levy protested against duck shooting by entering the hunting area. Charged for this action. Levy argued that he was exercising his freedom of communication. Held that actions may amount to communication; however, in this case there was no unreasonable restriction on the freedom of communication
Freedom of communication and State law
ACTV and Stephens v WA Newspapers (1994) held that the freedom of communication extends to political discussion at the State level
Freedom of communication is subject to reasonable restrictions
Freedom is not absolute – will not always prevail over other interests
Content (ideas or information communicated) vs. Mode (the method of communication)
ACTV held that restriction on content and more difficult to justify than restrictions on mode
Requirements:
Restriction must be reasonably proportionate to the object
Restriction must achieve a legitimate object
The object and manner of its achievement must be consistent with – representative principle, responsible government and the referendum process
Restriction must be appropriate (no other less restrictive method available)
Restriction must be adapted to the object (not excessive)
Not only the object, but the manner of its achievement must be consistent with representative power (Coleman v Power (2004))
E.g. Parliament can regulate the conduct of people in relation to elections so as to prevent intimidation and undue influence, even if this restricts the freedom
Freedom does not protect commercial communications
APLA Ltd v Legal Services Commissioner (NSW) (2005) – rejected the challenge that an Act that prohibited advertising for legal services restricted freedom of communication. Held that limiting the marketing of legal services is not incompatible with a system of representative and responsible government
Defamation
After the freedom of political communication was recognised, the law of defamation changed accordingly to respect that freedom
Theophanous v Herald & Weekly Times [1994] –Theophanous was a Member of Parliament who was defamed. He argued that the defence of qualified privilege (which was limited to publications among persons having reciprocal duties) should be expanded due to the freedom of communication. The defence was expanded.
Lange v ABC (1997) – refined the defence of qualified privilege.
Qualified privilege can apply to communications to a wide audience that relate to government or political matters.
Statements must be reasonable (will be reasonable if there are reasonable ground to believe it is true; the writer/publisher took reasonable steps to verify facts; writer/publisher didn’t believe it to be untrue; writer/publisher sought a response unless it was impractical or unnecessary to do so)
Malice (improper purpose) will defeat the defence (an intention to cause political damage is not an improper purpose)
Freedom of Association
No case has directly upheld the freedom of association
Obiter dicta in ACTV suggest there is such a freedom:
Mason CJ – representative government depends on free communication between all persons, groups and bodies (groups and bodies implies there is association)
McHugh J – conclusion to be drawn from ss. 7 & 24 is that the freedom of participation, association and communication in relation to federal elections is protected by the Constitution
Logical inference from the ration in ACTV
The Constitution establishes representative and responsible government freedom of communication is essential to this form of government (Nationwide and ACTV)
This could suggest that all freedoms essential to representative government are implied in the Constitution if the freedom of association in political matters is essential to such government, the freedom of association is implied in the Constitution
Legislative and Constituent Powers of the States Types of Constitutions:
‘Rigid’ or ‘controlled’ – the Constitution cannot be changed except by a special procedure (e.g. a referendum or a special majority) (most written Constitution)
‘Flexible’ or ‘uncontrolled’ – the Constitution can be changed by normal legislation passed in an ordinary manner
State Constitutions are considered flexible but may be made rigid by State Parliament
Legislative Power of State Parliaments
State Parliaments have plenary legislative power their power is not unlimited but is not limited to a list of specific subjects
Have the power ‘to make laws for the peace, welfare and good government of the colony in all cases whatsoever’ (s.2 of the Constitution Act (Qld) – also implemented in s.2(1) of the Australia Act)
BLF Case (1986) – held that the words do not grant the States an unlimited legislative power; rather, the power is confined to ‘the peace, welfare and good government’
Limitations on State Power
Australian States have always been subject to external limitations on the legislative capacity of their Parliaments
Limitation within the Commonwealth Constitution
Heads of power exclusively vested in the Commonwealth Parliament are not within State legislative power (e.g. customs and excise duties power, currency, defence)
Some provisions of the Constitution expressly limit State legislative power (e.g. s.114 provides that a State ‘shall not … impose any tax on property of any kind belonging to the Commonwealth’; s.117 that prevents interstate discrimination
It is stated in s.6 that State Constitutions are ‘subject to this Constitution’ – thus, State legislative powers may be subject to limitations implied in the Constitution
Does the State Parliament have the power to amend the State’s Constitution Act?
Each State Parliament has the power to amend the constitution of its State, subject to such binding ‘manner and form’ requirements that Parliament has imposed in exercise of that power
The Colonial Laws Validity Act 1865 (Imp) stated that the State Parliament could amend the State Constitution
McCawley v R [1920] – Privy Council held that State Parliament may make laws that are inconsistent with the Constitution without formally amending the Constitution (if Parliament could amend the Constitution with a normal law, then they should also have this power) however, if the law concerns the ‘constitution, powers and procedure’ of parliament, manner and form requirements (if any) must be followed
Limitation on State legislative power after the Australia Act 1986 (Cth)
The Australia Act served to sever legal ties with the United Kingdom (made clear in Sue v Hill (1999))
s.1 – UK Parliament has no power to legislate for the States
s.2(1) – States have full power ‘to make laws for the peace, order and good government of the State’
s.2(2) – States may legislate extra-territorially but have no power to engage in relations with foreign countries
s.3 – State laws are not void if they are inconsistent with UK law
s.5 – State legislative power remains subject to the Cth Constitution
s.6 – Laws respecting the constitution, powers and procedures of parliament must be ‘passed in such manner and form as may from time to time be required by a law made by that parliament, whether made before or after the commencement of this Act’
s.8 – State laws cannot be disallowed by Her Majesty
s.9 – No State law is to be withheld from Her Majesty’s pleasure
s.10 – Termination of the responsibility of UK government in relation to State matters
s.11 – Termination of appeals to the Privy Council from decisions of State Supreme Courts (the High Court was made the highest court of appeal)
The Manner and Form Limitations
s.6 of the Australia Act 1986 (Cth) – ‘a law made after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.’
Manner and form requirements are restrictive procedures – restrict legislative power by requiring that laws on certain topics may only be enacted by a special and more difficult procedure
Need to ask a number of questions in regards to this section:
1. Is the Act one respecting the ‘constitution, powers and procedure of the Parliament of the State’? (yes)
Constitution – refers to the compositions of Parliament (not the written Constitution)
Taylor v Attorney-General (QLD) (1917) – ‘the constitution of a legislature … [means] the composition, form or nature of the House’. ‘Probably the power does not extend to authorise the elimination of the representative character of the legislature…’
WA v Wilsmore (1981) – qualifications of members does not fall under the ‘constitution’ of Parliament
Attorney-General (WA) v Marquet (2003) – a change to the distribution of electors is a law respecting the ‘constitution’ of Parliament
Powers – refers to legislative power, the power to punish for contempt of Parliament and the power to conduct public inquiries
Procedures – refers to procedures for enacting bills
2. Is there a manner and form requirement prescribed in an earlier Act? (yes)
What is a manner and form requirement?
AG (NSW) v Trethowan (1931) – a referendum is a manner and form requirements
West Lakes v SA [1980] – a requirement that is too hard to meet is not a M&F requirement (rather, it is an attempt to limit future legislative power).
Comalco v AG (Qld) [1976] – ‘Comalco’ clauses (a clause that requires approval of extra-parliamentary agents) are not M&F requirements (rather, are an abdication of legislative power)
3. Is the manner and form requirement mandatory and not merely directory? (yes)
A provision is mandatory if it affects rights (e.g. shall)
A provision is directory if it imposes obligations to observe (e.g may)
An Act will be rendered void if there is a failure to observe mandatory provisions; however, not if there is only a failure to observe a directory provision (Clayton v Heffron (1960))
4. Does the manner and form requirement apply to itself? (it should)
Hypothetical example: s.1 states that the Parliament shall consist of 50 members. s.2 states that s.1 shall not be repealed or amended except with a successful referendum. Parliament can get around s.2 by first repealing s.2 and then amending s.1. To avoid this make s.2 (the M&F) provision apply to itself
5. Does the manner and form provision apply to the later Act?
AG (WA) v Marquet (2003) – s.13 of the Electoral Distribution Act 1947 (WA) stated that ‘it shall not be lawful to present to the Governor for Her Majesty’s assent any Bill to amend this Act, unless …’. A 2001 Bill sought to repeal the Act. Held that amend included repeal in this context as allowing the provision to be repealed would defeat the purpose of the provision.
6. Does the plaintiff have standing to bring an action when manner and form requirements are not satisfied? (yes)
A person must have standing to challenge a law – will have standing if the law affect the person’s private rights
ACK v Cth (1980) – a person cannot sue in relation to a public right or to prevent a public wrong (public rights are vindicated by the A-G: A-G may also lend his name to an individual to sue in a relator (ex rel) action)
s.53(5) of the Constitution Act (Qld) gives standing to every elector to challenge a law passed contrary to the referendum requirement in s.53
7. Can the Court stop by injunction a law being enacted contract to manner and form requirements?
Court have the power to invalidate laws that do not comply with M&F requirements
s.53(5) of the Constitution Act (Qld) – grants Courts the power to grant injunctions to stop bills being proceeded with contrary to the referendum requirement in s.53
A-G (NSW) v Trethowan [1932] – courts are reluctant to stop the legislative process by injunction (prevent a Bill from being passed) when M&F requirements have been disregarded (will strike a law down after it has been passed) position may be different in Queensland as the Constitution (Qld) expressly grants Courts the authority to do so
8. Can the Queensland Parliament’s constitution, powers and procedures be changed without a referendum? (no)
s.53 of the Constitution Act (Qld) – a bill that expressly or impliedly in any way affects ss. 1, 2, 2A, 11A, 11B and 53 shall not be presented for assent unless approved at a referendum
Whether or not s.53 is binding on the Queensland Parliament by virtue of s.6 of the Australia Act depends on how the next question is answered
9. Can manner and form limits be imposed independently of s.6 of the Australia Act 1986 (UK)?
s.6 of the Australia Act only applies to laws with regards to the ‘constitution, powers and procedures of parliament’ Can State Parliaments bind itself with manner and form requirements on other subjects? (e.g. entrenching a Bill of Rights with the need for a referendum to change it)
Two views on whether a sovereign parliament can bind itself on any subject:
View 1 – Sovereign can do anything including limits its own power
View 2 – Sovereign can do anything including repealing or disregarding its own previous commands
Case authority is unhelpful on this matter:
Clayton v Heffron – held that the NSW Parliament has complete and unrestricted power to make laws including law that change the constitution (inconclusive)
Bribery Commissioner v Ranasinghe (PC)– held that Ceylon Legislature has no power to ignore the conditions of law making. However, the Ceylon legislature was not sovereign but limited by the Ceylon Constitution (not authoritative)
Reconstitution Theory:
Theory holds that a sovereign parliament may reconstitute itself for the purpose of dealing with specific Acts or subjects and subsequently impose additional requirements on the newly reconstituted Parliament. Thus, they can impose M&F limitations upon itself independent of s.6
Jackson v H.M. Attorney-General (The Fox Hunters Case) [2005] – the Parliament Act 1911 (UK) drastically limited the power of the House of Lords. The House of Lords could delay a law for 2 years but after that the House of Commons could pass it with royal assent. The Parliament Act 1949 reduced the period to 1 year. This Act was passed by the HoC under the 1911 Act without the HoL consent. The Hunting Act 2004 was passed by the HoC under the 1949 Act without the HoL consent. It was argued that because the HoC and the Queen was a subordinate body, they could not increase its own power and that the 1949 Act is ultra vires the 1911 Act. Held that the HoC and the Queen are subordinate bodies and its powers are limited (e.g. it cannot abolish the House of Lords); however, the express and implied imitations did not preclude the enactment of the 1949 Act. Two judges used the reconstitution theory to support this conclusion.
No case has directly dealt with this issue – if upheld, it would allow the Parliament to impose any M&F requirements, not merely on those relating to the constitution, powers and procedures of Parliament
Policy Issues:
There may be consequences of Parliament being able to impose M&F requirements on any law could lead to the destruction of parliamentary democracy and each party will seek to entrench its own policies
Fundamental features of the constitution alone may be entrenched by M&F requirements
The Queensland Solution:
s.53 of the Constitution Act (Qld) – a bill that expressly or impliedly in any way affects ss. 1, 2, 2A, 11A, 11B and 53 shall not be presented for assent unless approved at a referendum
ss. 1, 2 and 2A deal with State Parliament
The words ‘in any way affects’ is broader that ‘respecting the constitution, powers and procedure’
A law containing a M&F requirement diminishes the power of Parliament hence, the law itself requires a referendum
Thus, the Constitution Act (Qld) cannot be amended with respect to Parliament and the Governor without a referendum
Positive effect as any2 fundamental change affecting the legislative and executive branch requires the approval of the people
Amendment of the Cth Constitution There are seven ways to change the Constitution
By an amendment Bill passed by both Houses of Parliament and approved at a referendum
By the transfer of powers from States to the Cth under s.51(xxxvii)
By the creation of a new legislative power by agreement of all the States under s.51(xxxviii)
By changing an initial constitutional provision by Parliament as authorised by the Constitution by use of words such as ‘unless Parliament otherwise provides’ (e.g. ss 30, 34)
By changes through judicial interpretation
State Constitutions can be amended by State Parliament subject to manner and form requirements
By revolution (can be violent such as in America or France or peaceful such as in Australia)
Constituent power is the power to make a law that changes the Constitution
Many legislatures have separate constituent bodies (e.g. in Australia, s.128 provides that the constituent body is the Parliament and the electorate)
Some sections of the Constitution allows the Parliament to change that section by themselves (e.g. s.72) – this is not a constitutional amendment; rather, a change of the initial constitutional setting
Some legislatures have both constituent power and legislative power (e.g. NZ) however, there may be a special manner and form requirement to amend the Constitution
Sovereignty
The UK Parliament is sovereign
The Cth and State Constitutions were created by sovereign acts of the UK Parliament
Sovereignty is considered to be limitless power:
All persons and authorities are subject to the sovereign’s law
The sovereign is not bound by another’s law
The sovereign is not bound by its own previous law (can change the existing law at will)
Some limits to sovereignty:
Territorial limits – other countries do not have to obey the sovereign’s laws
Practical political limits – the people will vote them out if they pass unpopular laws (e.g. the UK Parliament can’t say that all blue eyed people will be exiled)
Limits imposed by general public international law
Limits imposed by EU law
Sometimes the sovereign cannot undo what it has done (e.g. granting a country independence – the courts and officials of that country will no longer obey UK legislation) most important limit in Australia
