Laws 150 federal constitutional law wk 20/7/00 Introduction

Content: Following US approach, if you have a restriction going to content (restrictions operate with respect to the character of the ideas or info), you will need a compelling justification. Q is “are there less restrictive means of accomplishing the objectives?”.

See Mason CJ on p 624.9-625.1, McHugh J on p 640.2.

Mode/manner: Restrictions imposed on an activity or mode of communication by which ideas or info are transmitted are more susceptible of justification. Ct asks “is the restriction reasonably necessary & proportional to accomplishing the gov’ntal objective?” (Castlemaine Tooheys test).

See Mason CJ on p 625.2, McHugh J on p 640.1, Gaudron J on p 631.5.

9. 
   Conclusion:
   

• 
  Here there was a content restriction at the core of protection > so examined with “scrupulous care” (Mason CJ p 625.7) & failed.
  
• 
  It depended on who focussed on what more (Brennan J looked more at ads whilst others looked at free time issue).
  

• 
  Gaudron J: Appropriate limit/balance betw’n free speech & defamation is the common law (p 631).
  
• 
  McHugh J: Left open whether freedom extends beyond election period (now against that it goes beyond).
  
• 
  Brennan J: Allowed a “margin of appreciation” – ie, gave greater weight to Parl’s judgment.
  
• 
  Dawson J: Dissented completely & said there is no implied freedom of political communication.
  

Summary (ACTB):

• 
  Established a 6:1 maj (great deal of agreement) that there is an implied freedom of political communication derived from representative gov’nt.
  
• 
  It is not absolute.
  
• 
  Essentially you have a Castlemaine Tooheys test to determine whether limits have been breached with more serious restrictions when goes to content not mode (a la US).
  

• 
  Next q: What impact, if any, did implied freedom of political communication have on law of defamation?
  

• 
  Issue arose 1st in New York Times v Sullivan (1964)
  

• 
  There was an ad in NYT about civil rights in Alabama & polce commissioner took exception to this & sued in Alabama cts.
  
• 
  Feared that law of defamation could be used to stifle public officials.
  
• 
  Sup Ct said that 1st Amendment & law of defamation did not exist in separate streams; public official can sue for defamation only if publisher is guilty of malice.
  

• 
  Theophanous v Herald (1994)
  

• 
  HCA followedabove approach & constitutionalised law of defamation. (p 645.5).
  
• 
  Defamation of public official or political candidate will not be actionable if publisher can establish (p 651):
  

1. 
   Unaware of falsity
   
2. 
   not published recklessly
   
3. 
   publication was reasonable in all circs
   

• 
  Treated implied freedom as a constitutional right & constitutionalised defamation (it is an implied Const principle).
  
• 
  4:3 in favour of implied freedom (narrowing law of defamation). Mason CJ, Toohey & Gaudron JJ, & Deane J (he was radical & said complete freedom of speech) vs Brennan, Dawson & McHugh JJ who said that law of defamation had developed over yrs to strike an effective balance betw’n principle of free speech & protecting reputation.
  

• 
  Lange v ABC (1997)
  

• 
  Concerned a defamation action by former NZ PM against ABC.
  
• 
  ABC had pleaded a Theophanous defence.
  
• 
  HCA considered Theophanous.
  
• 
  2 things to note:
  

1. 
   Brennan CJ, Dawson & Toohey JJ about to resign & might be fearful that Howard would appoint Conservatives not keen on freedom of speech. There was a joint judgment with all 7, with least change from Brennan CJ.
   

Brennan CJ: in Theophanous said current current law of defamation represented appropriate balance betw’n freedom of speech & protection of reputation; here said ‘no’ not that.

Dawson J: here endorsed implied freedom (before he rejected it).

Toohey & Gaudron JJ: had adopted Theophanous principle of constitutionalism of defamation; here they abandoned it.

McHugh J: moved like Brennan CJ but also abandoned that view that it only applied to political elections.

• 
  What they did with Theophanous:
  
• 
  Mere change in Const does not mean HCA must change its view.
  
• 
  In First Territories Representation Case (1975), it was held by 4:3 that Territories could be represented in Senate (Barwick CJ, Gibbs & Stephen JJ dissented). Second Territories Representation Case came out the same as 1st.
  
• 
  HCA saw maj in Theophanous was created artificially (because of Deane J) & showed no unity.
  
• 
  HCA held:
  
• 
  Theophanous constitutionalised law of defamation (defamation was affected by implied freedom). Lange regarded that as an incorrect approach. Accepted implied freedom of political communication but tried to narrow it along lines of people who showed concern like McHugh J (put it on a firmer basis).
  

ss 7 (directly elected Senate) & 24 (directly elected House)

s 64 (implying the principle of resp gov’nt)

s 128 (referendum prov’n)

• 
  HCA recites these 4 provs & think they are getting back to text > imply freedom from that (mostly using ss 7 & 24).
  
• 
  What is protected is freedom of communication relating to elections to the Cth Parl. State politics & international politics related to that are left open.
  
• 
  Interpret it in line with ACTB (not absolute, limited by Castlemaine Tooheys) – same pts are clarified. Does not relate to all speech (like Gaudron J said) & not confined to election period (like McHugh J said) but extends to all time.
  

2. 
   On pt of defamation:
   

• 
  Implied freedom is an immunity from law, not a right – it is a limitation on Cth pwr (if have free-standing right, could sue for breach of that right).
  
• 
  Is current law on defamation in line with implied freedom of political communication? Brennan, McHugh & Dawson JJ in Theophanous said ‘yes’ (balance) but here say ‘no’, it needs to be liberalised.
  
• 
  Defence of qualified privilege which would allow publication with certain limits did not extend to areas of reciprocity. Kept defamation law separate from Const, but made it compatible & more liberal by expanding qualified privilege to incl sit’ns of mass communication (ie, there was a need to expand qualified privilege to incl these sit’ns).
  
• 
  Extent of qualified privilege & impled freedom occupied the same territory but qualified privilege is probably wider.
  
• 
  In this case, it was defamation of a former NZ PM. Did qualified privilege extend to defamation of foreign leader? Yes.
  

Summary (Lange):

• 
  Limited freedom by tying it to 4 sections (?).
  
• 
  Not much change in analysis of how you view the breach (they don’t look at or deny conduct & mode/manner).
  
• 
  Left defamation unconstitutionalised – so common law subj to Statute.
  

6 important pts from Lange:

1. 
   Essence of what Theophanous decided was that law of defamation must be compatible with Const & they accept this (p 669).
   

2. 
   Freedom of communication is one regarding political, gov’ntal matters relating to the Cth (p 674.6). Freedom has no constitutional protection about State matters.
   

See p 674.6, 670.5/8, 671.2 & 680.5.
Emphasise that implied freedom is based on Const text (p 672.1, 676.9, 679.8).
It is not a personal right; it is a freedom (p 671.3).
Not confined to election period; it applies to all periods (p 671.5/6/8).

3. 
   Freedom is not absolute (p 671.9) & note the test (p 672 para 1 & 674 para 2). Latter is VIP:
   

1. 
   No mention of Cth.
   
2. 
   Castlemaine Tooheys test.
   

4. 
   Common law must conform with Const (p 673.3).
   

In Theophanous combine Const & law of defamation.

Here common law must be compatible.

5. 
   Common law of defamation & Const protection must be coterminous. Does it incl States & Terrs? (p 673.4, 677.3) Defamation does whereas in relation to Const protection it was left open.
   

6. 
   Conclude that common law needs to be reformed to fit freedom but that NSW Act is compatible with the freedom.
   

7. 
   Defamation:
   

• 
  Extend qualified privilege to masses.
  
• 
  Publication must be reasonable. Reasonableness is the basic criterion adopted in NSW Defamation Act.
  
• 
  It must not be actuated by malice [improper purpose] (p 679.2).
  
• 
  Publication agaisnt your political opponent is not malice (p 679.5).
  

• 
  No constitutional defence (p 680.2), Theophanous defence struck out.
  
• 
  Do not constitutionalise defamation but conform common law to be in line with Const.
  
• 
  On implied freedom, try to tie it closely to 4 sections; it extends to all time; repeat limitation from ACTB.
  
• 
  So, qualified privilege did incl State matters whereas implied freedom was left aside by HCA (left open).
  

WK 13.2

9/11/00
Constitutional Rights ctd

• 
  Levy v Vic (1997)
  

• 
  Last HCA case on this topic.
  
• 
  Vic law restricted entry to duck shooting areas. Reg 5 prohibited access to duck shooting at beginning of season. Persons trying to get in to get info against duck shooting & argued that restrictions impaired their freedom of political communication. 3 issues were brought up to HCA:
  

1. 
   Communication regarding State law could fall into implied freedom.
   
2. 
   Whether you can have non-verbal communication (could incl non-verbal activities like entry into an area, silent protest, etc).
   
3. 
   Whether restrictions were basically proportional to achievement of gov’ntal obj.
   

• 
  Law was upheld.
  

• 
  1st issue was waded by HCA.
  
• 
  Lange left pos’n open (not State because there was foreign issue).
  
• 
  ACTB & other cases of Mason ct say State would be incl.
  
• 
  Brennan CJ & McHugh J said they would probably not consider State matters in the implied freedom (against it).
  
• 
  Today, issue of implied freedom relating to State matters is left open (not decided). Current HCA would be less expansive than Mason ct.
  
• 
  See p 683.6, 685.5.
  

• 
  On q of non-verbal communication, HCA said this was covered by implied freedom (all HCA agreed). See p 682.
  

• 
  Restrictions were proportional & were aimed at protecting safety (barrier to ensure they did not meet) – therefore, did not consider 1st issue.
  
• 
  Reasonable & concerned safety. They were in proportion to gov’ntal obj. They were proportional to safety.
  
• 
  It was a mode/manner restriction, not content (not even pro-duckshooters allowed in area).
  
• 
  See p 685 Note 1.
  

Summary (Levy):

• 
  What does Levy add to Lange?
  

1. 
   Clarifies qualified privilege might be wider than the implied freedom (Lange left State matters open).
   
2. 
   Clarifies that non-verbal activity can represent communication.
   
3. 
   Provides an eg of what falls within the qualification.
   

Other implied guarantees

• 
  Leeth v Cth (1992)
  

• 
  Represents zenith of implied constitutional freedoms.
  
• 
  Here they go from implication to invention.
  
• 
  Cth law required judges sentencing people for fed offences to apply these State rules concerning allegibility for parole under State in which they were tried & convicted.
  
• 
  Fed prisoners housed in State gaols. There would be unequal parole (arbitrary discrimination). Argued that this law infringed an implied principle of equality before the law.
  
• 
  HCA came close to adopting this implied freedom.
  
• 
  Argued on 2 grounds that there was an implied protection of equality:
  

1. 
   It was an implied feature of fed judicial pwr – accepted by Gaudron J (struck law down), Deane & Toohey JJ (but thought law did not breach this); Mason CJ, Dawson & McHugh JJ rejected this arg; Brennan J did not discuss this pt.
   
2. 
   There is an implied constitutional prohibition against arbitrary discrimination, based upon common law which recognised equality. This was supported by Deane & Toohey JJ, & to some extent by Brennan J, & opposed by Mason CJ, Dawson & McHugh JJ.
   

• 
  Law was held valid by 4:3 (Mason CJ, Dawson & McHugh JJ dissenting). On each issue, it was 3:3. No issue had a maj vote.
  

• 
  Gaudron J:
  
• 
  She took the view that fed jud pwr had to be exercised in accordance with jud process, & notion of equality before the law was an inherent part of that process (all judges agree with these 2 pts).
  
• 
  She says not just procedural but also actual rules of law that ct applies should be the same (this extra pt is supported by Gaudron J only). See p 869 para 1 & p 735 Note 1.
  

• 
  Deane & Toohey JJ:
  
• 
  Based on arg in Preamble. People agree to unite in a federation – all people & all people equally (p 868).
  
• 
  It is Gaudron J’s arg above.
  
• 
  Const does contain some prohibitions on discrimination (eg: ss 90, 92, 116, 117, etc). See p 869.
  
• 
  Also say common law recognised equality before the alaw but some exceptions like women & Crown (p 868.5) – therefore, fundamental implied prohibition on arbitrary discrimination.
  

• 
  Mason CJ, Dawson & McHugh JJ:
  
• 
  No general requirement in Const that Cth laws should have a uniform operation throughout Cth (p 865 line 1).
  

Important pts from Leeth:

• 
  Mason CJ, Dawson & McHugh JJ: found no limitation regarding substantive equality & therefore law was valid.
  
• 
  Brennan J: accepted arg 2 but said what implied prohibition prohibited was irrational discrimination & here you had rational discrimination.
  
• 
  Gaudron J: law unequal & invalid.
  
• 
  Deane & Toohey JJ: law did not breach 1st ground (jud pwr pt – not breached because no inequality, same rule applied in each case [local parole regime]) but did breach 2nd ground (rationality depends on where gaoled & not sentenced).
  

Summary (Leeth):

• 
  Leeth left pos’n unclear.
  
• 
  2 gds – deadlocked at 3:3.
  
• 
  4 out of 7 did recognise some ground for equality (some potential possibility of some constitutional entrenchment of prohibition on inequality).
  

• 
  Kruger v Cth (The Stolen Generation Case) (1997)
  

• 
  Law was upheld.
  
• 
  Q of legal equality.
  
• 
  Arg was that the law authorising removal of Abos from their fams represented breach of implied right of equality.
  
• 
  Deane J was gone from HCA & replaced by Gummow J. Mason CJ gone & replaced by Kirby J (who did not sit).
  
• 
  Argued on Leeth.
  
• 
  Repetition by Gaudron J (inherent in notion of fed jud pwr that was equality before law) & Toohey (implied prohibition against irrational discrimination).
  
• 
  Brennan CJ, Dawson, McHugh & Gummow JJ rejected both grounds in Leeth.
  
• 
  So, 4:2 rejected equality.
  
• 
  Rejected equal opportunity clause; recognises procedural but not substantive due process (p 731.5, 735.2).
  
• 
  Notion of equality before the law has been rejected by HCA (4:2).
  
• 
  Winterton says we should change Const & get an equal opp cl like in US.
  

• 
  Polyukhovich v Cth (1991)
  

• 
  Cth War Crimes Act.
  

1. 
   Lack of leg pwr > HCA upheld law under geographical externality by 6:1.
   
2. 
   Contravened separation of judicial process (no pwr to enact retroactive crim laws) > HCA upheld leg’n by 4:3.
   

• 
  On 2nd issue:
  
• 
  Cth Parl could not enact a Bill of Attainder (a Statute that declares people guilty of crime & sentences them to death; any leg’n that imposes crim liability on specific person).
  
• 
  Cth Const does not expressly prohibit Bill of Attainder nor ex post facto laws (US prohibits both).
  
• 
  Sep of pwrs means that leg cannot enact a B of A because it is a judicial pwr.
  
• 
  Cth Parl cannot impose crim liability on specific class of people (might extend to civil).
  
• 
  Retroactive crim law – possible (except for Toohey J who said criminal there but not in Aust at the time).
  

Summary (Polyukhovich):

• 
  Retroactive crim laws are valid (except prob of Toohey J who did not endorse it as a universal proposition).
  
• 
  Retroactive crim laws are valid but no clear maj saying in all cases:
  

3 said OK (Mason CJ, McHugh & Dawson JJ).

Toohey J said sometimes ‘yes’, sometimes ‘no’, but valid here because not contrary to rational (behind the concerns).

Deane & Gaudron JJ saying invalid.

Brennan J had no comment because no pwr to enact the law.

• 
  Kable v DPP (1996) NSW
  

• 
  Made threats whilst in prison.
  
• 
  NSW passed special Act saying application could be made to Sup Ct for preventive detention.
  
• 
  B of A (imprisonment of person) – Cth Parl could not have enacted it but this was a State Act.
  
• 
  Was there a SOP in State Const? No, by a unanimous HCA.
  
• 
  If non-jud funct’n given to State ct by State, State must not besmirch integrity of Ch III of Const.
  
• 
  Maj was McHugh, Gummow, Toohey & Gaudron JJ. Brennan CJ & Dawson J dissented.
  
• 
  Kable principle: States must not vest non-jud funct’ns in their cts of such a kind that would lead an ordinary, reasonable member of public to conclude that cts are not independent.
  

Summary (Kable):

1. 
   Entire ct recognised that still no separation of State jud pwr (subj to Kable principle).
   

State can enact a Bill of Attainder.

See McHugh J on p 50.4, 57.3, & also Brennan CJ, Dawson & Toohey JJ.

2. 
   Because of Ch III ss 71 & 77(iii), fed jud pwr invested in State cts.
   

States must retain a jud sys headed by Sup Ct.

See Gummow J on p 51.1/8/9, 52.1.

3. 
   Ct saw Aust ct sys as more integrated. There is one common law.
   

See p 52.6, 54.5.

4. 
   Because Const Ch III envisages appeals from Sup Ct to HCA, States do not have pwr to abolish right of appeal to HCA & also to Sup Ct.
   

5. 
   Neither Cth nor State could undermine the scheme envisaged by Ch III of Const & therefore State cannot invest in Sup Ct non-jud functions incompatible with the exercise of fed jud pwr (p 55.3).
   

Incompatible functions are those that would lead people to believe Sup Ct is not independent. See Gaudron, Gummow & Toohey JJ (p 56.2, 57.4).

6. 
   State can invest non-judicial functions in Sup Ct but not so many that it loses its identity as being a s 77(iii) ct.
   

See p 56.4.

7. 
   Conclusion > Kable principle (endorsed by 5) was contravened by a variety of factors:
   

• 
  Interim order could be made in absence of def.
  
• 
  Sup Ct is making an order for detention of person on civil standard (balance of probabilities).
  

8. 
   Bearing in mind Ch III (protecting integrity of State cts), there was nothing from stopping NSW Parl to make leg’n imprisoning Kable. Prob was that it incl the cts (but note this was more preferable because left to ct & therefore looked better).
   

• 
  There is no State separation of pwrs but Ch III of Fed Const does impose some limits on what States can do with their judiciaries because:
  

1. 
   Cth Parl can vest federal jurisdiction in State cts (should not vest in their cts non-judicial functions in sit’n where public would conclude cts are not independent & therefore there is a lack of confidence in cts).
   

State gives judiciary non-judicial but not such that it is incompatible with exercise of fed jud pwr.

2. 
   State cts must retain character of cts – s 77(iii) & s 71. If give non-judicial functions, must not be unproportional.
   
3. 
   Envisages appeals, therefore must retain judiciary, Sup Ct & appeals.
   

• 
  Leg’n invalid because invested non-judicial functions in Sup Ct, thereby undermining confidence on part of public.
  

Distinguish 5 levels of rights (Winterton)

• 
  The lower the level, the greater the legitimacy.
  

1. 
   Express rights
   

• 
  The strongest case are express rights (conferred by Const) – ss 51(xxxi), 80, 92, 116, 117, etc.
  
• 
  HCA has interpreted most of express rights narrowly.
  
• 
  Eg: s 80 says that a trial of indictable fed offences should be by jury. A superficial reading would suggest that it guarantees trial by jury. It has really been interpreted by HCA to mean guarantees trial by jury on indictable fed offences.
  
• 
  In 1937, Dixon & Evatt JJ dissented in Lowenstein & favoured a more rational approach. Deane & Kirby JJ take on their view but never have nos to overturn this legalistic view.
  
• 
  Same story with s 116 (religion).
  
• 
  Property interests have been interpreted broadly (s 92 has been cut back, however, since Cole v Whitfield).
  

2. 
   Where common law notions of rights are used to interpret constitutional provisions
   

• 
  Similar to long-standing approach that use common law to interpret statutes.
  
• 
  In Coco (1994), HCA used judicial principle of ‘rule of law’ to read down leg’n. In Cheatle’s Case (1993), HCA unanimously interpreted s 80 in accordance with common law history of criminal trial by jury at Fed’n, & said s 80 required unanimous votes. In Bicentennial Authority Case (1988), s 51(xxxix) was interpreted via common law notions re: freedom of speech.
  

3.