ALEXANDER MEIKLEJOHN, AMERICAN
CONSTITUTIONAL LAW, AND AUSTRALIA'S IMPLIED
FREEDOM OF POLITICAL COMMUNICATION
William G Buss*
Sometime after 1992, I first learned that the High Court of Australia had discovered
that the Australian Constitution contained something that sounded very much like a
freedom of speech guarantee. And the reasoning that supported that discovery
sounded like the philosophy of Alexander Meiklejohn which I had been teaching in a
seminar on Free Speech for several years.
Although Meiklejohn was talking about the United States Constitution, he was not
emphasising the words of the First Amendment thereto. Drawing upon pre-Bill of
Rights commitments recorded in various historical documents, Meiklejohn's view was
that the framers of the United States Constitution had made a covenant with each other
to build a democracy in which the people were both the governors and the governed.
Freedom of speech, according to Meiklejohn, was necessary to make a democracy, and
that was all that freedom of speech was designed to do. It was imperative that the
citizens of a democracy be in the position to state their views about government policy,
to hear the views of others, and to communicate those views to their elected
representatives who, in turn, were accountable to the people at the next election and
obligated to justify their actions. Democracy could not work without freedom of
speech, and the purpose of exercising that freedom was to do the business of
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*
O K Patton Professor of Law, University of Iowa (Yale BA, Harvard LLB). An earlier
version of the first third (Part I) of this article was written while I was a Visiting Scholar at
the Centre of Comparative Constitutional Studies, University of Melbourne Law School, in
1999 and presented at the 1999 ALTA Conference at Victoria University, Wellington, New
Zealand. I wish to thank Professor Cheryl Saunders, Director of the Centre, for her
hospitality and that of her colleagues and the staff at the Centre during the very happy
months I spent in Melbourne at the Centre. I also wish to thank my Iowa colleagues for
their comments on a faculty seminar on the second third of the article (Part II) and Sir
Geoffrey Palmer, Dr Adrienne Stone, Professor Kim Rubenstein, and the anonymous
referee for comments on the paper in roughly its present form. Finally, I express my
gratitude to many Research Assistants, too numerous to mention, for work too extensive to
catalogue, during the slow gestation of the paper over several years. The article's flaws that
remain are my own, and they are surely fewer because of all this assistance.
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governing. Democracy meant self-government; self-government created the need for
freedom of speech; freedom of speech was necessary to serve democracy. 1
Students often asked: 'If Meiklejohn is correct, why do we need a First
Amendment?' Why indeed?
When the High Court of Australia announced, in Australia Capital Television Pty Ltd
v The Commonwealth (No 2), 2 that there was a freedom of expression protection
embedded in the Australian Constitution, the Court's rationale seemed to echo
Meiklejohn's philosophy. In view of the fact that the Australian Constitution expressly
provides for the election of Representatives 3 and Senators 4 by the people of Australia,
and for a constitutional amendment process that requires a vote of the people, 5 Mason
CJ said the Australian Constitution creates a system of 'representative government' and
'representative democracy' under which 'the representatives of necessity are
accountable to the people' and that made 'freedom of communication … an
indispensable element in representative government'. 6 All of which shows, as my
students suggested, that it can be done without anything like the express language of
the First Amendment to the United States Constitution.
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1
Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948) 11 (Declaration
of Independence, 1776), 14 (Mayflower compact, 1620), 15 (preamble to the Constitution of
the United States, 1787).
2
(1992) 177 CLR 106 ('ACTV'). See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
('Nationwide News').
3
Australian Constitution s 24: 'The House of Representatives shall be composed of members
directly chosen by the people of the Commonwealth …'.
4
Australian Consitution s 7: 'The Senate shall be composed of senators … directly chosen by
the people of the State …'.
5
Australian Constitution s 128: '… the proposed law shall be submitted … to the electors
qualified to vote for the election of members of the House of Representatives'.
6
ACTV (1992) 177 CLR 106, 137–8. Meiklejohn was not cited, but that is not surprising.
Meiklejohn is famous for his theory of free speech and democracy among American civil
libertarians, but his basic idea has long been in the public domain. See Frederick Schauer,
Free Speech: A Philosophical Enquiry (1982) 36, citing Immanuel Kant, On the Old Saw: That
May Be Right in Theory But It Won't Work in Practice (E B Ashton trans, 1974 ed) 72 [trans of:
Über den Gemeinspruch: Das mag in der Theorie riehtig sein]; Benedict de Spinoza, 'A
Theologico–Political Treatise' in A Theologico–Political Treatise and A Political Treatise (R H M
Elwes trans, 1951 ed) 1, ch XX [trans of: Tractus Theologico–Politicus]; David Hume, 'Of the
Liberty of the Press' in David Hume, Essays: Moral, Political, and Literary (first published
1742, 1889 ed with preliminary dissertations and notes by T H Green and T H Grose) vol 1,
94. In Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom
of Political Communication' (2001) 25 Melbourne University Law Review 374, 375 n 4, Dr
Stone attributed the same idea to Charles Black, Structure and Relationship in Constitutional
Law (1969). The acknowledgment of Meiklejohn came later in Theophanous v Herald &
Weekly Times Ltd (1994) 182 CLR 104, 124 (Mason CJ) ('Theophanous'), where Mason CJ
noted that '[a] similar view has been advocated by Alexander Meiklejohn.'
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423
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That says nothing about whether it should have been done, 7 and it leaves the big
question about where it will go. What is now generally called an 'implied freedom of
political communication' has evolved in its short life to date. Whether in the long run
Australia will have a robust free speech principle consistent with the political
philosophy of Alexander Meiklejohn remains to be seen. For the reasons developed in
this article, my conclusion is that it will. Of course, this is only a prediction from an
outsider to Australia's constitutional system, with all of the risks and limitations which
that inevitably entails. And my conclusion includes no assumption that the details of
the application of such a principle would or should follow closely the details of
Meiklejohn's philosophy or the jurisprudence of American constitutional law.
On the way to my conclusion, in Part I, I will review briefly the historical
Australian-American constitutional connection and provide a brief overview of
Australia's implied freedom. In Part II, I will examine closely the High Court's
discussion in Lange v Australian Broadcasting Corporation, 8 in which the Court compares
Australian and American free speech law and contrasts the treatment of federalism
and the common law under the Australian and United States Constitutions. Finally, I will
argue in Part III that there is a path, starting with the words of Sir Owen Dixon, and
running through federalism and parliamentary sovereignty, to a surprising common
law convergence of American and Australian constitutional law dealing with freedom
of political expression.
I
THE AMERICAN CONNECTION AND A SHORT SUMMARY OF
THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION
A
The American connection
Sir Owen Dixon famously said that '[t]he framers of our own federal Commonwealth
Constitution' were so fascinated by the 'incomparable model' of the United States
Constitution that '[i]ts contemplation damped the smouldering fires of their
originality.' 9 The records of the Australasian Federal Convention 10 reveal that the
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7
See generally 'Symposium: Constitutional Rights for Australia?' (1994) 16 Sydney Law
Review 145, 145–287 (a collection of essays by prominent Australian, and other,
constitutional scholars variously supporting or criticising the High Court's discovery of a
judicially enforceable implied freedom). Compare Jeffrey Goldsworthy, 'Constitutional
Implications and Freedom of Political Speech: A Reply to Stephen Donaghue' (1997) 23
Monash University Law Review 362, 371–4, with Jeremy Kirk, 'Constitutional Implications
(II): Doctrines of Equality and Democracy' (2001) 25 Melbourne University Law Review 24,
44–57; Michael Stokes, 'Interpretation and Changes in Constitutional Law; A Reply to
Jeffrey Goldsworthy' (1996) 21 Australian Journal of Legal Philosophy 1.
8
(1997) 189 CLR 520 ('Lange').
9
Sir Owen Dixon, 'The Law and the Constitution' (lecture, delivered in Melbourne, 1935) in
Judge Severin Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) ('Jesting
Pilate') 38, 44. Jesting Pilate is a collection of Dixon lectures and essays delivered or written
over a span of 32 years, from 1933–1964. One bit of wished–for originality might have
eschewed separate State and federal jurisdictions: see at 54. See also Sir Owen Dixon,
'Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of
Australia on 21st April, 1952' in Jesting Pilate 245, 249.
10
Official Record of the Debates of the Australasian Federal Convention, Volumes I–V (as
reprinted, 1986, Gregory Craven, editor), passim.
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invocation of American constitutional experience was a daily occurrence in the
Conventions held at the end of the Nineteenth Century. 11 The Convention records
indicate that at least some of the men 12 who framed the Australian Constitution had
wide knowledge of the United States Constitution and its interpretation by the United
States Supreme Court. 13 The American influence followed the Australian Constitution
into the courts, 14 although American constitutional law soon proved to be a contrast
and foil as well as a model and precedent. 15
The model that the Australian framers kept before them, according to Sir Owen
Dixon, was 'the American Constitution of 1787' 16 — that is, the United States
Constitution without the Bill of Rights containing the First Amendment. 17 Discussion of
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11
In an on–going study of the Australian convention debates, I have found that nearly every
convention day contains some American reference, often extensive and often central to the
issues before the convention.
12
As they, like their American counterparts, all were. See Deborah Cass and Kim Rubenstein,
'Representation/s of Women in the Australian Constitutional System' (1995) 17 Adelaide
Law Review 3, 28–9.
13
See John Andrew La Nauze, The Making of the Australian Constitution (1972) 27–8, 49, 273–4;
Erling Messer Hunt, American Precedents in Australian Federation (1930). La Nauze points out
at 273 that Australia's constitutional framers were particularly influenced by the then
recently published work of an English scholar, James Bryce, The American Commonwealth
(1888), and that the actual knowledge of the United States Constitution and American
constitutional law varied a great deal from one Convention delegate to another. See also
Harry Evans, 'The Other Metropolis: the Australian Founders' Knowledge of America'
(1998) 2 The New Federalist: The Journal of Australian Federation History 30–4.
14
See William Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910)
608. In D'Emden v Pedder (1904) 1 CLR 91, 111–20, Sir Samuel Griffith, the first Chief Justice
of the High Court and one of the primary authors of the Australian Constitution (see La
Nauze, above n 13, 48–81; Emeritus Professor Geoffrey Bolton, 'Lucinda Oration, Supreme
Court of Queensland, Brisbane, 30 March 2001' in Michael White and Aladin Rahemtula
(eds), Sir Samuel Griffith: The Law and the Constitution (2002) 1, 6–10) relied extensively on
the reasoning of comparable American cases. The American influence can also be seen in
Australian scholarship. See, eg, Stephen Gageler, 'The High Court on Constitutional Law:
The 2001 Term' (2002) 25 University of New South Wales Law Journal 194, 195 (modelled after
the Harvard Law Review's annual Supreme Court Review, although Australia has no 'Term'
equivalent); Jeffrey Goldsworthy, 'Interpreting the Constitution in Its Second Century'
(2000) 24 Melbourne University Law Review 677, 678, 695–7.
15
In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, the
landmark 'Engineers' case, Isaacs J stressed the differences between the United States and
Australian Constitutions. Despite this case's huge importance in Australian constitutional
law, its reasoning has been frequently criticised and the relevance of the Australian–
American contrast questioned. See Tony Blackshield and George Williams, Australian
Constitutional Law & Theory (4th ed, 2006) 296–324; Sir Anthony Mason, 'The High court of
Australia: A Personal Impression of Its First 100 Years' (2003) 27 Melbourne University Law
Review 864, 873; Geoffrey Sawer, Australian Federalism in the Courts (1967) 130–1, 198; Leslie
Zines, The High Court and the Constitution (4th ed, 1997) 10–11; Sir Owen Dixon, 'Marshall
and the Australian Constitution' in Jesting Pilate, above n 9, 166, 171.
16
Sir Owen Dixon, 'Marshall and the Australian Constitution' in Jesting Pilate, above n 9, 166,
199.
17
United States Constitution amend I (prohibiting abridgements of 'the freedom of speech',
ratified in 1791).
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American Constitutional Law and the Implied Freedom of Political Communication
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American cases in the groundbreaking Nationwide News and ACTV cases 18 was not
prompted by the historical influence of the United States Constitution. Citation of
American authority occurred as part of a pattern of citing relevant foreign cases from
many jurisdictions and stems from the fact that American freedom of expression
jurisprudence occupies a position that is paramount in longevity and extensiveness.
Similarly, when the implied freedom principle was applied to defamation issues, it
was natural to cite American cases because The New York Times Co v Sullivan 19 was at
the heart of extensive reconsideration of defamation law in many jurisdictions. 20 But
when the implied freedom of political communication became firmly established in
Australian constitutional law in Lange, 21 there is no easy explanation for the
extraordinary place given to American constitutional law in the High Court's
unanimous decision. 22
B
Implied freedom of political communication: a brief summary
Before turning directly to an attempt to unravel the High Court's use of American
constitutional law in Lange, it is important to summarise the law solidified by the Lange
judgment. The two original implied freedom cases did not command the full approval
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18
Nationwide News (1992) 177 CLR 1, 31 n 95 (Mason CJ) citing Smith v Daily Mail Publishing
Co, 443 US 97, 106 (1979); 32 n 2 (Mason CJ) citing Bridges v California, 314 US 252, 270–1
(1921) and Landmark Communications Inc v Virginia, 435 US 829, 842 (1978); 60 n 95 (Brennan
J) citing Crandall v Nevada, 73 US 35 (1867) ('Crandall') and The Butchers' Benevolent
Association of New Orleans v The Crescent City Live–Stock Landing and Slaughter–House
Company, 83 US 36 (1872) ('The Slaughterhouse Cases'); 73 n 30 (Deane and Toohey JJ) citing
Crandall, 73 US 35, 44 (1867); 77 n 40 (Deane and Toohey JJ) citing Red Lion Broadcasting Co
Inc v Federal Communications Commission, 395 US 367, 375–7 (1969) ('Red Lion Broadcasting');
103 n 19 (McHugh J) citing The New York Times Co v Sullivan, 376 US 254, 269–70 (1964) ('NY
Times'); ACTV (1992) 177 CLR 106, 140 n 11 (Mason CJ) citing NY Times, 376 US 254 (1964)
and Smith v Daily Mail Publishing Co, 443 US 97, 106 (1979); 143 n 24 (Mason CJ) citing Cox
Broadcasting Corp v Cohn, 420 US 469, 491 (1975); 143 n 25 (Mason CJ) citing Konigsberg v
State Bar of California, 366 US 36, 50–1 (1961); 144 n 27 (Mason CJ) citing Monitor Patriot Co v
Roy, 401 US 265, 272 (1971) and Buckley v Valeo, 424 US 1, 15 (1976); 159 n 54 (Brennan J)
citing Mills v Alabama, 384 US 214 (1966); 159 n 56 (Brennan J) citing NY Times, 376 US 254
(1964); 169 n 84 (Deane and Toohey, JJ) citing Red Lion Broadcasting, 395 US 367, 375–7
(1969); 211 n 2 (Gaudron J) citing First National Bank of Boston v Bellotti, 435 US 765, 776–7
(1978); 212 n 4 (Gaudron J) citing First National Bank of Boston v Bellotti, 435 US 765 (1978);
213 n 10 (Gaudron J) citing Crandall, 73 US 35, 44 (1867) and The Slaughterhouse Cases, 83 US
36, 79 (1875); 214 n 11 (Gaudron J) citing Crandall, 73 US 35 (1867); 231 n 65 (McHugh J)
citing Buckley v Valeo, 424 US 1, 14–15 (1976); 232 n 69 (McHugh J) citing Crandall, 73 US 35,
44 (1867); 235 n 73 (McHugh J) citing Buckley v Valeo, 424 US 1, 18 (1976); 239 n 78 (McHugh
J) citing Buckley v Valeo, 424 US 1, 19 (1976); 241 n 80 (McHugh J) citing Mills v Alabama, 384
US 214, 219 (1966).
19
376 US 254 (1964).
20
Ian Loveland, Political Libels: A Comparative Study (2000); Mark Tushnet, 'The Issue of State
Action/Horizontal Effect in Comparative Constitutional Law' (2003) 1 International Journal
of Constitutional Law 79; Adrienne Stone and George Williams, 'Freedom of Speech And
Defamation: Developments in the Common Law World' (2000) 26 Monash University Law
Review 362.
21
(1997) 189 CLR 520.
22
Ibid 562; below, Part II.
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of all seven Justices, 23 and the decisions applying or not applying the implied freedom
principle in subsequent cases were made by a divided Court. 24 In 1997, the High Court
expressly undertook to reconsider Theophanous v Herald & Weekly Times Ltd 25 and
Stephens v West Australian Newspapers Ltd, 26 both divided (4-3) decisions. 27 It was
widely anticipated that the Court might reverse or significantly limit its freedom of
communication jurisprudence. Although the treatment of a collision between the
common law and the Australian Constitution was reconceptualised in Lange, the High
Court unanimously reaffirmed the principle of the earlier cases. A law review
comment entitled, 'It's A Miracle!' 28 was evidently referring to the fact that the Lange
case not only reaffirmed the challenged constitutional freedom but did so unanimously
in a single judgment joined by all seven Justices. Specifically, the unanimous Court
clarified the rationale, scope, and controlling test applicable to the implied freedom.
1
Rationale. The initial explanation of the implied communication principle
seemed to have been based both on quite specific language of the Constitution 29 and on
the nature of the Australian constitutional system as a 'representative democracy'. 30 In
Theopanous and Stephens, however, any reliance on this broad characterisation was
sharply criticised 31 and, in Lange, it was rejected. 32 The Lange Court said 'the
Constitution gives effect to the institution of "representative government" only to the
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23
In Nationwide News (1992) 177 CLR 1, Mason CJ and Dawson and McHugh JJ concurred on
federalism grounds; in ACTV (1992) 177 CLR 106, Dawson J and Brennan J, in part,
dissented.
24
Applying the principle, see Theophanous (1994) 182 CLR 104; Stephens v West Australian
Newspapers Ltd (1994) 182 CLR 211 ('Stephens'); not applying the principle, see Langer v
Commonwealth (1996) 186 CLR 302; Kruger v Commonwealth (1997) 190 CLR 1 ('Kruger');
Muldowney v South Australia (1996) 186 CLR 352; Cunliffe v Commonwealth (1994) 182 CLR
272.
25
(1994) 182 CLR 104.
26
(1994) 182 CLR 221.
27
Technically and, as it turned out, crucially, they were actually 3–1–3 decisions. Deane J
acquiesced in the answers of Mason CJ, Toohey and Gaudron JJ to the specific questions
reserved by the stated cases, but because his judgment advocated a far more speech–
protective position, the High Court later, in Lange (1997) 189 CLR 520, treated Theophanous
(1994) 182 CLR 104 and Stephens (1994) 182 CLR 211 as lacking a majority position. This
reasoning seemed 'rather disingenuous' to Professor Loveland in Ian Loveland, Political
Libels (1999) 148: 'It is something of an exercise in sophistry to claim that because Deane J
went far beyond the point reached by the plurality he cannot be assumed to have approved
their destination'.
28
Kris Walker, 'It's A Miracle!: High Court Unanimity on Free Speech' (1997) 22 Alternative
Law Journal 179.
29
ACTV (1992) 177 CLR 106, 137.
30
Ibid 135, 137, 139.
31
See Jeremy Kirk, 'Constitutional Implications (I): Nature, Legitimacy, Classification,
Examples' (2000) 24 Melbourne University Law Review 645, 647.
32
Lange (1997) 189 CLR 520, 566–7. Yet the Court also said that, 'to have a full understanding
of the concept of representative government' (at 559), it is necessary to heed the words of A
H Birch, Representative and Responsible Government (1964) 17, that elections must be free
'with all that this implies in the way of freedom of speech …'. Birch was certainly not
relying on the text of the Australian Constitution or any particular text.
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American Constitutional Law and the Implied Freedom of Political Communication
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extent that the text and structure of the Constitution establish it.' 33 Professor Leslie
Zines has expressed his doubts about the significance for the future of the freedom of
political communication of this text-and-structure limitation. 34
2
Scope. Chief Justice Mason's judgment in ACTV spoke of 'freedom of
communication, at least in relation to public affairs and political discussion' and he
queried whether such 'discussion is substantially different from an unlimited freedom
of communication.' 35 Despite these whisps of a broader free speech protection, the
High Court has been united since 1992 in regarding the newly recognised speech
protection as applicable only to 'political' communication, in this respect true to its
Meiklejohnian kinship. 36 Within that political limitation, the implied freedom was
given a broad scope in the Lange decision. 37 The freedom encompasses relevant
information concerning the functioning of government and about the policies of
political parties and candidates; communications between electors and the elected
representatives, between the electors and candidates for election, between the electors
themselves; communications concerning the conduct of executive branch officials,
including ministers, the public service, statutory authorities and utilities. 38 Although
national democratic elections provide the basis for the implication, the protection of
relevant communications is not confined to the election period. 39 There remains some
uncertainty about the applicability of the implied freedom to communications related
to political matters below 40 or beyond 41 the national level.
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33
Lange (1997) 189 CLR 520, 566–7, relying in part on McGinty v State of Western Australia
(1996) 186 CLR 140 ('McGinty') which included extensive discussion of the implied freedom
of communication when it rejected a one–person one–vote principle.
34
Leslie Zines, 'The Present State of Constitutional Interpretation' in Adrienne Stone and
George Williams (eds), The High Court at the Cross Roads (2000) 224, 227–31. Of course, as
demonstrated by the result in McGinty (1996) 186 CLR 140, other areas of constitutional
law may be affected by the High Court's reliance on text and structure rather than
'representative democracy'. See, eg, Cass and Rubenstein, above n 12.
35
(1992) 177 CLR 106, 138, 141; see also 149 (Brennan J: not 'very precise criterion for
determining the validity of impugned legislation.')
36
See above, n 1 and accompanying text.
37
See Leslie Zines, 'Judicial Activism and the Rule of Law in Australia' in Tom Campbell and
Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 400.
38
Lange (1997) 189 CLR 520, 560–1.
39
Ibid 557–8, 561–2.
40
Compare Stephens (1994) 182 CLR 211, 232 (Mason CJ, Toohey and Gaudron JJ), 257 (Deane
J), with Levy v Victoria (1997) 189 CLR 579 ('Levy'), 595–6 (Brennan CJ, denying such
applicability but conceding a contrary majority in Stephens). In a recent decision, the Court
came close but did not resolve the question: Coleman v Power (2004) 220 CLR 1 involved a
State statute prohibiting insulting words spoken to a State police officer. Noting that the
State conceded the applicability of the constitutional freedom to communications
concerning State political matters, McHugh J stated that the concession was proper because
such officers enforce federal as well as State law: at 44–5. Gummow and Hayne JJ
acknowledged that there was force in McHugh's reasoning but relied solely on the
concession without deciding its correctness: at 78. Justice Kirby did not rely on the
concession but agreed with McHugh J that the State statute as applied to State police was
within the constitutional freedom: at 89. See also Callinan J at 112–13 (disagreeing with
concession); and Heydon J at 120 (assuming without deciding that the State statutory
prohibition burdened the constitutional freedom).
41
Lange (1997) 189 CLR 520, 571–2. See Walker, above n 28, 181.
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3
The Test. Even within the limits of political communication, the implied
freedom of political communication has never been an absolute. 42 Despite variations
articulated by various Justices both before and after Lange, 43 the test laid down by the
unanimous Lange Court has been consistently accepted as setting the limits of the
implied freedom. 44 The Lange test contains an end (or object) dimension and a means
(or fit) dimension. 45 To satisfy the test, the means (or fit) dimension must be
reasonably appropriate and adapted 46 to achieving the legitimate object (or end). The
object (or end) part of the test was stated as follows:
The object of the law [which is claimed to violate the implied freedom of political
communication] is compatible with the maintenance of the constitutionally prescribed
system of representative and responsible government [or the procedure by which the
people vote on a constitutional amendment]. 47
The verbal formula was revised slightly in Coleman v Power. 48 Actually, the meansand-end two parts are sometimes treated as one element and a further element is
added as a kind of preliminary requirement: Does the challenged law 'effectively
burden freedom of communication about government or political matters either in its
terms, operation or effect.' 49 The answer to the additional question will turn on what
the Court, over time, includes within the scope of the constitutionally protected
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42
In Alexander Meiklejohn, 'The First Amendment Is an Absolute' (1961) The Supreme Court
Review 245, Meiklejohn drew the boundaries of political communication in the United
States surprisingly broadly: 255–7; but, despite the 'absolute' in the article's title, the
article's argument is the unremarkable proposition that, whatever 'abridging the freedom
of speech' in the First Amendment means, that is something the government may not do:
247–8. Compare McHugh J's statement in Coleman v Power (2004) 220 CLR 1, 49: 'In
determining whether a law is invalid because it is inconsistent with freedom of political
communication, it is not a question of … balancing. … Freedom of communication always
trumps [conflicting government powers].'
43
Dr Stone analysed the tests that had been used by various Justices at the time of her
writing: Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of
Review and the Freedom of Political Communication' (1999) 23 Melbourne University Law
Review 668.
44
See APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620, 219 ALR 403
('APLA'); Mulholland v Australian Electoral Commission (2004) 220 CLR 181; Roberts v Bass
(2002) 212 CLR 1; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208
CLR 199 ('Lenah Game Meats'); McClure v Australian Electoral Commission (1999) 163 ALR 734
(Hayne J).
45
Broadly speaking, this sort of means–end test governs entrenched constitutional protection
in various legal systems. See, eg, R v Oakes [1986] 1 SCR 103 (Canada); Ministry of Transport
v Noort [1992] 3 NZLR 260 (New Zealand); RAV v City of St Paul, Minnesota, 505 US 377
(1992) (United States).
46
Or 'proportionality': Lange (1997) 189 CLR 520, 562; see also Coleman v Power (2004) 220 CLR
1, 90 (Kirby J).
47
Lange (1997) 189 CLR 520, 562.
48
The new formula asks whether 'the [challenged] law regulates communication upon
political and governmental matters in a manner which is inconsistent with the system of
representative government for which the Constitution provides?': Coleman v Power (2004)
220 CLR 1, 51 (McHugh J), (emphasis added). Justices Gummow and Hayne, at 78, and
Kirby J, at 82, concurred in this reading.
49
Lange (1997) 189 CLR 520, 567.
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American Constitutional Law and the Implied Freedom of Political Communication
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freedom, on how much impairment of the freedom has occurred, and how much
impairment will be sufficient to be regarded as an effective 'burden'.
Notwithstanding the unanimous Lange judgment and the subsequent acceptance of
this test as controlling, its application has not always commanded agreement on just
how tight a fit is required to justify restrictions on political communication to further
permissible government objectives. For example, Lange required that a challenged law
(limiting the freedom of political communication) 'is' reasonably appropriate and
adapted to achieve the state's permissible object; but, in his contemporaneous Levy
judgment, Brennan CJ proposed a more deferential standard, requiring only that the
challenged law could 'reasonably be considered to be' appropriate and adapted to
achieving the object. 50 The deferential standard was eventually rejected in Coleman. 51
In a related but distinct example, the Lange decision illustrated the means part of the
test by noting that the majority decision in ACTV had found that 'a law seriously
impeding discussion during the course of a federal election was invalid because there
were other less drastic means by which the objectives of the law could be achieved.' 52
In Levy, however, Brennan CJ said that Australian courts lacked power to determine
that 'some more limited restriction … could suffice to achieve a legitimate purpose.' 53
II
THE COMMON LAW AND TWO CONSTITUTIONS
Just as the Lange judgment was undertaking to settle the rationale, scope, and test for
the judicially developed implied freedom of political communication, it was opening
new questions about the meaning and future application of that freedom when the
constitutional challenge related to the common law. The new ground being broken
came primarily in a kind of essay which the High Court labelled 'The common law and
the Constitution'. This jurisprudential essay embedded in the Lange judgment — sort of
a play within the play — is at once fascinating and baffling, though perhaps baffling
only to American eyes.
The Court never explicitly explained why it inserted this essay (hereinafter
sometimes 'the Essay' or 'the Lange Essay') at just this point in its judgment and what it
is intended to accomplish. Read in the context of the entire judgment, however, the
purpose is clear. In Theophanous, a three-Justice plurality had said, '[i]f the Constitution
… is at variance with a doctrine of the common law, the latter must yield to the
former.' 54 In Lange, a unanimous Court said 'the common law rules of defamation
must conform to the requirements of the Constitution.' 55 In the Lange Essay, the Court
is explaining why it is shifting from the Theophanous approach, under which
inconsistent common law 'yields' to the Constitution, to the Lange approach, under
_____________________________________________________________________________________
50
Levy (1997) 189 CLR 579, 598 (emphasis added).
51
(2004) 220 CLR 1, 48 (McHugh J), 77–8 (Gummow and Hayne JJ), 82 (Kirby J). See also 31
(Gleeson CJ).
52
Lange (1997) 189 CLR 520, 568.
53
Levy (1997) 189 CLR 579, 598. But see McHugh J's judgment in Coleman v Power (2004) 220
CLR 1, 52 (broad ban permitted if 'only way that the system of representative government
could be protected'), 53 (constitutional tolerance of burden on communication ends if
burden is 'unreasonably greater than is achievable by other means').
54
(1994) 182 CLR 104, 126; see also 163 (Deane J, concurring in the judgment).
55
(1997) 189 CLR 520, 556.
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which inconsistent common law is 'developed' to bring it into conformance with the
Constitution.
The Essay begins with a simple observation that defamed persons must find a legal
remedy 'either in the common law or in a statute 56 which confers a right of action.' The
Court then adds, it 'cannot be admitted' that a remedy would be available if its exercise
infringed the constitutionally protected freedom of political communication. To an
American eye, and perhaps to an Australian eye immediately after Theophanous and
Stephens, that seems a pretty straightforward proposition: Usually, defamatory speech
results in liability against the defamer, but under some circumstances the Constitution
protects the defaming speaker. Within that broad principle, it is a matter of working
out the contours of the limits resulting from the constitutional protection of some
speech, which would otherwise be an actionable defamation. That is what NY Times
and, in Australia, Theophanous and Stephens were all about. 57
But, to the Lange Court, the proposition is not straightforward. An explanation is
required. Having asserted that it 'cannot be admitted' that a defamation remedy could
be given at the expense of the constitutional freedom, the Court concludes, '[i]t is
necessary, therefore, to consider the relationship between the Constitution and the
freedom of communication … on the one hand and the common law and statute law …
of defamation on the other.' 58
Beginning this consideration at the beginning, the Court starts with the Parliament
at Westminster, the United Kingdom's 'unwritten constitution', and the fact that the
'common law supplies elements of the British constitutional fabric.' 59 The Court draws
upon the words of Sir Owen Dixon for this last point and for the proposition that
parliamentary sovereignty is not part of some inherent law of nations, but a part of 'the
common law of England'. 60 The Lange Essay then follows this history to Australia to
consider the impact on the common law framework of a 'federal system of government
embodied in a written and rigid constitution.' 61 Remarkably, however, the Essay is
suddenly not talking only about an accommodation of the common law to Australia's
written federal constitution, but also to 'that of the United States of America'. 62 The full
statement is: 'With the establishment of the Commonwealth of Australia, as with that
of the United States of America, it became necessary to accommodate basic common
law concepts and techniques to a federal system of government embodied in a written
and rigid constitution.' 63
_____________________________________________________________________________________
56
Naming this section 'The Common Law and the Constitution' identifies the focus of the
Court's attention, but the need for accuracy requires frequent references to the relationship
between statutes and the Constitution; and the tension between the common law emphasis
and the unavoidable discussion of statutes reveals that the message of the Essay is more
complicated than it first appears to be.
57
As the Theophanous judgment made clear, the 'working out' of the 'contours' separating
actionable defamation and freedom of communication cannot be expected to be the same in
Australia and the United States. See Stone and Williams, above n 20.
58
Lange (1997) 189 CLR 520, 562.
59
Ibid.
60
Ibid (citing Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198,
199–200).
61
Lange (1997) 189 CLR 520, 562.
62
Ibid.
63
Ibid.
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American Constitutional Law and the Implied Freedom of Political Communication
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Having drawn the parallel, the Court then brings out a contrast. 'The outcome [of
this accommodation] in Australia differs from that in the United States.' 64 The Essay
then summarises in two sentences the difference in the way the two federal systems
have incorporated and accommodated the common law:
There is but one common law in Australia which is declared by this Court as the final
court of appeal. In contrast to the position in the United States, the common law as it
exists throughout the Australian States and Territories is not fragmented into different
systems of jurisprudence, possessing different content and subject to different
authoritative interpretations. 65
The Court then states, 'The distinction is important for the present case and may be
illustrated as follows.' 66
What is to be 'illustrated' in the remaining discussion in the Essay is somewhat
elusive. Literally, the reference is to 'the distinction', which evidently refers to the
differing 'outcomes' produced by the intersection of the common law with the
Australian and American federal constitutional systems. In context, the thing to be
illustrated in what 'follows' is the importance of the American-Australian differences
in explaining the relationship between the common law and the Constitution in
Australia. That, more specifically, must mean the insight that comes from analysing the
different ways that Australia and the United States have accommodated 'common law
concepts and techniques' to a 'written and rigid constitution' which embodies a federal
system of government. 67
Of course, Australian constitutional law has no obligation to explain why it is
different from American constitutional law. Nevertheless, the High Court seems to be
saying that comparing and contrasting Australian and American constitutional law is
an indispensable tool in the Court's explanation of the relationship between the
common law and the Constitution in Australia; or, at the very least, that knowing that
the United States and Australia faced a similar problem and solved it differently
should contribute significantly to an understanding of the relationship. 68 Having
undertaken to do so in the Essay which 'follows', the reasons explaining why the
Australian and United States federal Constitutions have produced different approaches
to the relationship between the common law of defamation and the constitutional
freedom of expression should be clear and important. It is questionable whether that
standard has been met.
In the Essay's discussion of 'The Common Law and the Constitution', it is possible
to identify three (different but overlapping) dimensions which the High Court offers to
explain why the American fragmented federal system and the Australian unitary
federal system require different approaches to resolving the possible conflict between
common law defamation and constitutionally protected freedom of political
_____________________________________________________________________________________
64
Ibid 563.
65
Ibid.
66
Ibid.
67
Ibid 562.
68
Writing in the first decade of the Australian Constitution, Professor Harrison Moore said,
'[b]ut even where the Australian Constitution departs most from the American, that
departure has generally been conscious and advised, as an appreciation of the results of
American experience, so that in interpretation we must not ignore but adapt': Harrison
Moore, above n 14, 609.
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communication: (1) whether the federal judiciary has power to decide the meaning of
the common law; (2) whether the source of recovery for injury resulting from
constitutional violations is to be found in the common law or the Constitution; and (3)
whether the character of the implied constitutional freedom is a limit on government
power or a source of a personal right.
A
The common law and two systems of federalism
The fundamental contrast emphasised in the Essay is between 'one common law in
Australia … declared by this Court as the final court of appeal' and the fragmentation
of the common law in the United States 'into different systems of jurisprudence,
possessing different content and subject to different authoritative interpretations'. 69
This contrast identifies two kinds of fragmentation and two different contrasts. First,
there is the fragmentation of the content of the common law in the United States into
50 different laws for 50 different states. Whether based on the common law of
defamation or statutory enactments codifying and modifying that law, each of the
American states has its own law of defamation. That does not mean, inevitably, 50
different legal rules on every conceivable aspect of defamation law. On the contrary,
there is a great deal of similarity of the law from one state to the next; 70 but each state
law is separate and autonomous. There is no general federal common law, 71 and
therefore no federal common law of defamation.
The second kind of fragmentation in American common law concerns judicial
power — what the Lange Essay means by being 'subject to different authoritative
interpretations'. In the United States, federal courts at all levels have ultimate authority
to decide the meaning only of federal law; they have no judicial power to provide the
authoritative interpretation of state defamation law or any other state law. 72 That
applies to the Supreme Court of the United States as well. So, in short, in the United
States, the Supreme Court has no general common law jurisdiction, 73 and so no
jurisdiction over the common law of defamation; at the same time, the Supreme Court
has no jurisdiction to determine the meaning of state law of any kind, and so no
jurisdiction whatsoever over the states' defamation law.
The contrast, in both respects, is clear and large. The Australian High Court is truly
a 'high' court for all purposes: As the Essay states, it is 'the final court of appeal' with
the last word on the common law, and it also has the last word on every other legal
issue — whether based on common law, statute law, or constitutional law; whether a
law of the Commonwealth or one of the Australian States. As a consequence of this
difference in judicial power, the highest court in Australia has a string to its bow that
the highest American court does not have: When a collision between the common law
_____________________________________________________________________________________
69
Lange (1997) 189 CLR 520, 563.
70
See Sir Anthony Mason, 'The Common Law in Final Courts of Appeal Outside Britain'
(2004) 78 Australia Law Journal 183, 190.
71
This is a slight exaggeration: see generally Laurence H Tribe, American Constitutional Law
(3rd ed, 2000) 466-501; but the qualifications that would be necessary to fine–tune the
statement are entirely unnecessary for the purpose of the present analysis.
72
When state law questions come before any federal court in the United States in so–called
'diversity' cases, the court decides those questions on the basis of state law as determined
by a state court: see ibid 470–2.
73
But see below, nn 184–205 and accompanying text (discussing common law methodology for
interpreting constitutional law).
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American Constitutional Law and the Implied Freedom of Political Communication
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____________________________________________________________________________________
of defamation and the Australian Constitution is threatened, the High Court of Australia
can prevent the conflict by its interpretation of the common law, 'which it is the duty of
the courts to ascertain as best they may'. 74 The United States Supreme Court can
resolve such a conflict only by saying, in effect, 'We accept the fact that the common
law in State X means thus and so (because that is what the State X Supreme Court says
it means)' and then adding, 'That is unfortunate because the common law so
interpreted by the State X Supreme Court is unconstitutional and has to yield to the
United States Constitution.' 75
There is certainly a distinction here: In the United States (and Australia under
Theophanous), the common law and the Constitution are not brought into harmony. The
Constitution requires a certain level of protection of free speech, but the common law
defences to a defamation action may require less free speech protection. When that
happens in the United States, the common law, like any other law, is unenforceable
insofar as it gives an action for damages that violates the United States Constitution. In
Australia after Lange, the common law may require more but it may not require
something less than the Constitution. That form of disharmony is prevented from
occurring by the obligation of the courts to develop the common law to bring it into
harmony with the Australian Constitution. 76
Fundamental as this distinction is, 77 the question remains whether the distinction is
'important' in explaining the abandonment of the Theophanous (and American)
approach in favor of the Lange approach. A majority of the High Court in Theophanous
did not adopt the American approach because it was American, but because the
majority of High Court Justices thought it was a sound approach under the thenevolving Australian constitutional law. Suppose the Lange case had been decided first,
squarely based, as it was, on the judicially developed common law deliberately
brought into accord with the Constitution. Suppose it was then argued in an American
court that the Australian approach should be adopted. The clear answer would be that
that is impossible: under American constitutional law, federal courts have no power to
shape the common law.
But the situations are not reciprocal. The fact that the Australian courts do have that
power to shape the common law does not translate into their lacking the power to
create a constitutional defence to what would otherwise be a valid common law action
_____________________________________________________________________________________
74
Lange (1997) 189 CLR 520, 564 (quoting Sir Owen Dixon, 'Sources of Legal Authority' in
Jesting Pilate, above n 9, 198, 199).
75
It is close but not precisely the same as what the High Court said and did in Theophanous.
Unlike the United States where the state court would decide the common law, in
Theophanous it was the High Court itself which decided the meaning of both the common
law and the Constitution. At one time, the common law of Australia was the common law of
all of the British Commonwealth; and even as Australia became free to have its own
common law distinct from that of the United Kingdom, the uniformity of the common law
across former parts of the British Empire was regarded as important. See Mason, above n
70, 187 n 8, 189. Uniformity was much easier to maintain when appeals to the Privy
Council were available throughout the Commonwealth — until 1986 in Australia: see
Australia Act 1986 (UK), c 2, s 11; and until 2003 in New Zealand: see Supreme Court Act
2003 (NZ) s 42.
76
Lange (1997) 189 CLR 520, 566.
77
See Sir Owen Dixon, 'Sources of Legal Authority' in Jesting Pilate, above n 9, 198, 202
('ultimate difference of legal theory'; 'deep significance').
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for defamation damages. Indeed, the Lange judgment makes it clear that such a defence
would be available if the defamation action were based on a statute which failed to
pass the Court's two-part test. 78 Australia's brand of federalism makes it possible to
choose the common law approach adopted in Lange, but it does not preclude the
approach the High Court had adopted in Theophanous.
The Lange Essay opined that 'it makes little sense in Australia to adopt the United
States doctrine so as to identify litigation between private parties over their common
law rights and liabilities as involving "State law rights".' 79 Perhaps the Lange Court was
correct to say that it 'makes little sense' for Australia to eschew an option that it has.
But to say that 'it makes little sense' to take a particular approach falls short of saying
that that approach is not available or that the decision to forego the alternative
approach of NY Times and Theophanous is compelled by the difference between
American fragmented federalism and Australian unitary federalism. Nor does it
appear that there is any difference of substance between the two approaches that
would clearly warrant a characterisation of the difference as 'important'. Under either
approach, the same result (reconciliation of competing common law reputational
interest and constitutional expressive interest) by the same general means
(subordinating the common law reputational interest to the constitutional expressive
interest under the circumstances) is reached in consideration of the same ingredients
('the common convenience and welfare of society' 80 ). Thus, it seems that the distinction
is one of form, not substance, and thus it seems questionable whether one can
characterise the distinction as an important one. 81
The High Court might have taken the position that it was simply applying the
common law, which of course it was fully empowered to do. And, as long as the
common law interpretation adopted by the Court contained a common law defence
that covered the constitutionally protected freedom of political communication, the
_____________________________________________________________________________________
78
(1997) 189 CLR 520, 566, 568. See above, in text accompanying nn 42–53. Greg Taylor has
argued that the common law as developed by the Court to conform to the Constitution may
be modified by statute: Greg Taylor, 'Why the Common Law Should Be Only Indirectly
Affected by Constitutional Guarantees: A Comment on Stone' (2002) 26 Melbourne
University Law Review 623, 627; but Dr Stone has persuasively argued to the contrary:
Adrienne Stone, 'The Common Law and the Constitution: A Reply' (2002) 26 Melbourne
University Law Review 646, 649, 653. Despite their different categories, both the common law
and statutes must satisfy the same test mandated by the Lange judgment: (1997) 189 CLR
520, 567–8. Statutes 'cannot derogate from the common law to produce a result which
diminishes the extent of the immunity conferred by the Constitution': 566. Of course, any
common law development not required to satisfy the Australian Constitution is subject to
statutory change.
79
(1997) 189 CLR 520, 563. The exact meaning of this sentence is unclear, but it seems to be
talking about the American concept of 'state action' and the American constitutional law
principle that judicial action enforcing private rights is a form of state action according to
NY Times, 376 US 254, 269–70 (1964) and its progeny. 'State law rights' in the quoted
sentence may refer to the right (based on the United States Constitution) to a defence to a
defamation action, as the NY Times case provides. See Stone, above n 6, 411–12.
80
See Lange (1997) 189 CLR 520, 565.
81
Rejecting a distinction between statutory laws abridging freedom of speech and common
law abridgements, the Supreme Court of the United States said 'the test is not the form in
which state power has been applied but, whatever the form, whether such power has in
fact been exercised': NY Times, 376 US 254, 265 (1964).
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American Constitutional Law and the Implied Freedom of Political Communication
435
____________________________________________________________________________________
question of a conflict between the law of defamation and the law of the Constitution
would never arise. That is an approach that Dr Adrienne Stone has advocated. 82 Its
appeal is that it avoids constitutional issues and constitutional decisions, at least
initially, an advantage similar to that gained by reading a statute narrowly to avoid
premature constitutional decisions. 83 Dr Stone's preference for a common law
alternative is also supported by the incrementalism of the common law and the risk of
overly ambitious constitutional results, 84 but that risk would be ameliorated if the
High Court follows a common law methodology for constitutional decision making. 85
At some point, however, the common law — developed entirely independently of
the Constitution — might fall short of what the Constitution requires (as the Court
understood it did in Theophanous). A decision would then have to be made about the
consequences. To say at that point that the Constitution does not apply to the common
law would create different results for the same defamation rule in two different States
depending on the source of the rule in the common law or a statute. That would be a
very unappealing solution. Alternatively, without confronting the question of a
common law-constitutional law collision, the Court could always avoid a conflict by
manipulating the common law to fit the Constitution but without acknowledging the
manipulation — perhaps not even to itself. In these circumstances, the legislature,
without judicial guidance, might feel free to modify the common law rule only to find
that it had enacted a statute that was unconstitutional under the Lange test. 86
Perhaps the High Court's qualified way of speaking about the road not taken ('it
makes little sense' to adopt the American approach) simply reflects the fact that that
road will never be open in view of the approach that Lange adopts. If the courts are
always required to make the common law conform to the Constitution, there can never
be a situation in which a constitutional defence to a common law action will be needed.
But, of course, the reason for closing the alternative route cannot be constructed on the
ground that the alternative route has been closed. Lange is taken as having rejected the
Theophanous and Stephens (and American) approach. 87 Nothing in the Essay — nor
elsewhere in the Lange judgment — indicates that the Theophanous-Stephens approach
was rejected, except the ultimate conclusion that the defence based on the theory of
those cases is 'bad in law'. 88 No reason for that rejection is given except the weak and
obliquely stated reason that another approach is available.
_____________________________________________________________________________________
82
Adrienne Stone, 'The Australian Free Speech Experiment and Scepticism about the UK
Human Rights Act' in Tom Campbell, K D Ewing and Adam Tomkins (eds) Sceptical Essays
on Human Rights (2001) 391, 395–9; Adrienne Stone, 'Freedom of Political Communication,
the Constitution and the Common Law' (1998) 26 Federal Law Review 219, 227–45.
83
Stone, 'Freedom of Political Communication, the Constitution and the Common Law',
above n 82, 228–9 (though Dr Stone concedes that such avoidance tactics do not entirely
escape constitutional implications: 249).
84
Ibid 236–44.
85
See ibid 244, 246; see below, nn 184–205 and accompanying text.
86
Dr Stone noted advantages as well as disadvantages in the Court's addressing rather than
avoiding a constitutional question: Stone, 'Freedom of Political Communication, the
Constitution and the Common Law', above n 82, 246–50.
87
See, eg, Stephen Gageler, above n 14, 198.
88
Lange (1997) 189 CLR 520, 576.
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B
Sources of remedy for constitutional violations
Plainly, the American and Australian federal constitutional systems have assimilated
the antecedent common law differently. That difference demonstrates that Australia
can adopt the common law approach of Lange, but it falls short of providing a
satisfying explanation for rejecting Theophanous. In fact, the Lange Essay does not rest
with that explanation, but goes on to discuss other Australian-American differences.
Perhaps the Court's further discussion can supplement and strengthen the first
possible explanation or independently explain the rejection of the Theophanous
approach. One such possibility is the Essay's discussion of the different sources of
remedies for constitutional violations. The Essay stressed this aspect of the AustralianAmerican difference in one short paragraph: 89
This constitutional classification 90 has also been used in the United States to support the
existence of a federal action for damages arising from certain executive action in violation
of 'free-standing' constitutional rights, privileges or immunities [citing the Bivens case 91 ].
On the other hand, in Australia, recovery of loss arising from conduct in excess of
constitutional authority has been dealt with under the rubric of the common law,
particularly the law of tort [citing the Mengel case 92 ].
At first blush, this paragraph seems very promising. In a judgment, and specifically
in an Essay within that judgment, that undertakes to explain the course of Australian
constitutional law by highlighting the way it is similar to but different from American
constitutional law, this paragraph identifies an apparently stark contrast: On the one
hand, 'recovery of loss … under the rubric of the common law' and, on the other hand,
under a '"free-standing" constitutional right'. The apparent difference is all the sharper
in light of the fact that, in Mengel, the High Court expressly rejected the Australian
Constitution as an independent source of a damage action against government officials.
Best of all, it would seem, here is a difference on the basis of which Australia comes
down on the side of a common law solution, the United States on the side of a
constitutional solution.
But the paragraph, at least directly, is not a part of any line of argument that is
further developed in Lange. It is almost an aside — a kind of tangential observation
about the 'interaction … between the United States Constitution and the State common
laws.' 93 Why talk about the source of damage actions at all? Neither the Lange case nor
any of its free speech-defamation predecessors, any of the American free speechdefamation cases or, for that matter, any of the High Court's political communication
cases involved an action for damages by the party relying on the freedom of political
communication against a government or against anyone else. Defamation actions,
generally, do not involve claims for damages by defendants who are relying on their
freedom to speak. They do often involve what amounts to an 'immunity' from a liability
_____________________________________________________________________________________
89
Ibid 563.
90
The reference to this 'constitutional classification' is not altogether clear. It seems most
likely to refer to 'a constitutional privilege', referred to in the immediately preceding
sentence, but it could refer more broadly to the First Amendment, from which the words
'the freedom of speech, or of the press' are quoted earlier in the paragraph. Nothing seems
to turn on resolving that ambiguity.
91
Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388 (1971)
('Bivens').
92
Northern Territory v Mengel (1995) 185 CLR 307 ('Mengel').
93
Lange (1997) 189 CLR 520, 563.
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American Constitutional Law and the Implied Freedom of Political Communication
437
____________________________________________________________________________________
that would otherwise exist because there is some special justification for speaking even
though the speech is otherwise defamatory and actionable — precisely what they
receive under American law and under Australian law, whether in the form of a
constitutional ground for invalidating a statutory defamation action or in the form of a
common law defence developed to conform to the Australian Constitution. 94
Where no other source is available, the United States Supreme Court reasoned in
the Bivens case, an action for damages for a constitutional violation by a federal
government official can be based on the United States Constitution itself. Bivens
concerned a suit against federal agents who knowingly conducted a search in violation
of the Fourth Amendment to the United States Constitution. 95 The American Bivens case
(like the Australian Mengel case) did not involve any form of freedom of expression.
Although a Bivens action based on a violation of the First Amendment by a federal
official would be possible, few such actions have ever been brought and none has ever
been upheld by the Supreme Court of the United States. 96 In the United States,
constitutional violations by state or local officials would be far more common, and
actions based on such violations would not be brought under Bivens, but under a
federal statute. 97 Such statutory actions are commonly analogised to common law tort
actions. 98
In the Mengel Case, the High Court rejected a claimed constitutional violation,
failure to comply with the 'rule of law', as a basis of liability. Mengel relied on James v
Commonwealth, 99 which involved an alleged violation of section 92 of the Australian
Constitution. 100 The James case held that section 92 does not create a private right of
action for damages by individuals injured by State interference with trade and
_____________________________________________________________________________________
94
Although government actions in violation of free expression can cause injury (for example,
denying a government job to someone because she advocated the election of a disfavoured
candidate), claims based on the freedom of expression are characteristically defensive — to
avoid civil or criminal liability that would otherwise arise, as the relatively few Australian
cases demonstrate.
95
See Bivens, 403 US 388, 389, 392, 395–8 (1971).
96
A Bivens claim was denied to an individual claiming a freedom of speech violation related
to federal employment in Bush v Lucas, 462 US 367 (1983). The Court said in Correctional
Service Corp v Malesko, 534 US 61, 68 (2001) that 'we have consistently refused to extend
Bivens liability to any new context or new category of defendants.'
97
42 USC § 1983 (2000). Actions for violations of the First Amendment under § 1983 give rise
to damages based only for actual harm, and an individual whose First Amendment right
was abridged is not compensated for the value of the right lost. See Memphis Community
School District v Stachura, 477 US 299, 309 (1986); Jean C Love, 'Damages: A remedy for the
Violation of Constitutional Rights' (1979) 67 California Law Review 1242; Jean C Love,
'Presumed General Compensatory Damages in Constitutional Tort Litigation: A Corrective
Justice Perspective' (1992) 49 Washington and Lee Law Review 67.
98
See Wilson v Garcia, 471 US 261, 280 (1985); Monell v Department of Social Services of City of
New York, 436 US 658 (1978); Monroe v Pape, 365 US 167 (1961); Susan S Kuo, 'Bringing in
the State: Toward a Constitutional Duty to Protect from Mob Violence' (2004) 79 Indiana
Law Journal 177, 206; John C Jeffries, Jr, 'Damages for Constitutional Violations: The
Relation of Risk to Injury in Constitutional Torts' (1989) 75 Virginia Law Review 1461, 1466–
70.
99
(1939) 62 CLR 339 ('James').
100 Australian Constitution s 92 (freedom of interstate trade).
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commerce among the States. 101 Distinguishing an earlier case, Dixon J (as he then was)
explained that section 92 gives an immunity from an exercise of government power but
considered that, as a basis for an action for damages, it 'will do no more than nullify an
alleged justification of the government's exercise of a purported power.' 102
The Justices speaking for the Court in Mengel explained that liability of government
and government officials in Australia was available on the same basis as an action
between two private persons. Violation of a constitutional provision might be relevant
in determining that a government official acted negligently in failing to know the
limits of his authority, but it added little or nothing to the basis of a damages action
under the general law:
If it were the case that governments and public officers were not liable in negligence, or
that they were not subject to the same general principles that apply to individuals, there
would be something to be said for extending misfeasance in public office to cover acts
which a public officer ought to know are beyond his or her power and which involve a
foreseeable risk of harm. 103
At the end of the day, the magnitude and nature and relevance of the Bivens-Mengel
distinction seems doubtful. Indeed, the High Court in Mengel suggested in the
language just quoted that Australia might forge a comparable remedy if there were no
available common law action.
Finally, putting all these other considerations to one side, the Bivens-Mengel
dichotomy does not really speak to the question which the Lange Essay addresses: the
different ways that the Australian and American federal systems have accommodated
the common law. Whatever relevance Bivens could possibly have cannot be related to
any distinction between Australian and American federalism. That point is nicely
illustrated by Baigent's Case in New Zealand, 104 a country with no federal system at all.
In Baigent, much like Bivens, police officers conducted a search in violation of the New
Zealand Bill of Rights Act 1990 (NZ). The New Zealand Court of Appeal drew heavily
on Bivens in deciding that an action for damages would lie against police officers who
conducted a search that was alleged to be in violation of New Zealand's prohibition of
unreasonable searches and seizures. 105
As Baigent demonstrates, the principle that constitutional violations should not go
unremedied (a principle with which the Mengel Court indicated it was sympathetic) is
a principle that might be adopted under any constitutional system, federal or unitary.
It is also a principle that need not be adopted under any constitutional system. It has
been narrowly applied in the United States. Recognising the constitutional freedom of
political communication as a defence to a defamation action based on the
communication, along the lines of the High Court's judgment in Theophanous, carries
_____________________________________________________________________________________
101 James (1939) 62 CLR 339, 363–5.
102 Ibid 362. See Michael Coper, Freedom of Interstate Trade under the Australian Constitution
(1983) 329 n 28.
103 Mengel (1995) 185 CLR 307, 348. Bivens actions for damages would add nothing to the
common law action: British American Tobacco Australia Ltd v Western Australia (2003) 217
CLR 30, 52–3 (McHugh, Gummow and Hayne JJ); Kruger (1997) 190 CLR 1, 124–6 (Gaudron
J).
104 Simpson v Attorney-General [1994] 3 NZLR 667 ('Baigent's Case').
105 Ibid 692, 702, 705.
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American Constitutional Law and the Implied Freedom of Political Communication
439
____________________________________________________________________________________
no necessary implication whatsoever concerning the creation of an action for damages
to remedy a violation of the constitutional freedom.
C
Personal right or restriction on legislative power
Perhaps, it is not the American constitutional source of a 'federal action for damages'
that deserves attention but, rather, that such actions arise out of '"free-standing"
constitutional rights' that provide a riddle-solving distinction. The denial that
Australia's freedom of communication entails a 'free-standing' right is a refrain
running through Lange and through the dissenting Theophanous judgments of Brennan
and McHugh JJ. According to this refrain, the implied freedom of political
communication is not (like the American freedom of speech) a 'free standing personal
right'; 106 but, rather, it is a limitation on legislative authority. Dr Adrienne Stone has
extensively analysed and critiqued possible explanations for the insistent disclaimer of
the existence of a personal right. 107 Attention must initially focus on the contrast with
American freedom of speech, for which the High Court, here, seems to stress the
difference between American express freedom and the Australian implied freedom. The
Lange judgment says:
Unlike the First Amendment to the United States Constitution, which has been
interpreted to confer private rights, our Constitution contains no express right of freedom of
communication or expression. Within our legal system, communications are free only to
the extent that they are left unburdened by laws that comply with the Constitution. 108
To see what significance this statement might have for free-standing rights, one
must unscramble the contrast being drawn here. First of all, this statement somewhat
misleadingly indicates that the United States Constitution 'contains' an 'express right of
freedom of communication or expression'. The United States Constitution does contain
an 'express' freedom of speech provision, but it contains no express 'right'. What it
contains, literally, is a prohibition of action by Congress which would 'abridge' the
freedom: 'Congress shall make no law abridging the freedom of speech or of the
press.' 109 That is, the relevant language of the United States Constitution contains an
express restriction on legislative power, 110 and that is precisely the way the Lange
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106 Lange (1997) 189 CLR 520, 560 ('personal rights'), 560 ('personal right'), 575 ('private right'),
567 ('private rights'); Theophanous (1994) 182 CLR 104, 148–9 ('personal freedom'), 145, 147,
148, 162 ('personal right'), 153 ('rights of individuals') (Brennan J), 195 ('private right')
(McHugh J).
107 See Stone, above n 6. Dr Stone argues that the term 'personal rights', as used by the Court,
purports to limit the implied constitutional freedom of communication for various reasons
— because the freedom is restricted in scope, because it excludes protection of individual
autonomy, and because it has no application to the common law; but, she argues, none of
these limiting attributes are consistent with the basic freedom that the High Court has
recognised.
108 (1997) 189 CLR 520, 567 (emphasis added).
109 United States Constitution amend I.
110 This restriction on legislative power is applicable not only to Congress (and the federal
government) but also to the several American states through 'incorporation' of freedom of
speech in the Due Process Clause of the Fourteenth Amendment which provides that '[n]o
State shall … deprive any person of … liberty … without due process of law': United States
Constitution amend XIV, § 1. See Gitlow v People of the State of New York, 268 US 652 (1925)
('Gitlow') holding that the First Amendment is incorporated in the Fourteenth Amendment
through the Due Process Clause. See also Laurence H Tribe, American Constitutional Law
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Essay characterises Australia's implied freedom of political communication: 'the
requirement of freedom of communication operates as a restriction on legislative
power.' 111
Secondly, it is true that the American First Amendment 'has been interpreted to
confer private rights.' But, as we have just seen, that cannot be explained directly as a
consequence of an express constitutional right, since no such express right exists. On the
contrary, the interpretation which confers rights is based on an express constitutional
freedom restricting legislative power; and that is parallel to the implied Australian
freedom restricting legislative power. Of course, there are obvious and strong
arguments against implying a freedom of communication from a text which, unlike the
United States Constitution, contains no express references to a speech liberty or
freedom; 112 but Lange proceeds on the assumption that the implied freedom exists. If
an acknowledged freedom can be interpreted as a source of right, there is no good
reason why that cannot be true simply because the freedom is implied.
Thirdly, contrasting the operation of the United States Constitution, the Court says
'communications', in Australia, 'are free only to the extent that they are left
unburdened by laws that comply with the Constitution.' 113 By necessary implication
(despite the misleading 'only'), communications are also free in Australia when they
are burdened by laws that do not comply with the Constitution. That is, speech is free
in Australia when 'burdened by laws' that violate Australia's constitutional 'restriction
on legislative power' under the test laid down in the Lange judgment and subsequently
applied in other cases. 114 Both consequences exactly describe the operation of the
American First Amendment: Communications within the freedom of speech (and the
derivative private right) are free 'to the extent that they are left unburdened by laws
that comply with the Constitution' and they are free when they are burdened by laws
that do not comply.
Even if a contrast between American personal rights and Australian restrictions on
legislative power could be convincingly shown, the significance of the distinction is
_____________________________________________________________________________________
(2nd ed, 1988) § 11–2. The Lange Court noted the incorporation, although the Court
sensibly (but erroneously) seemed to place the locus of incorporation in the Fourteenth
Amendment's Privileges and Immunity Clause (Lange (1997) 189 CLR 520, 563) — as did
Alexander Meiklejohn, see Meiklejohn, above n 1, 59–61.
111 Lange (1997) 189 CLR 520, 566. That the resulting parallel is not simply a play on words is
supported by the fact that the framers of the United States Constitution, those in
Philadelphia in 1787 and those who adopted the 'Bill of Rights' in 1791, were primarily if
not exclusively concerned with limiting national legislative power. See Leonard Levy,
Origins of the Bill of Rights (1999) 35–7, 43; Akhil Amar, The Bill of Rights: Creation and
Reconstruction (1998) 6, 21. See also Joseph J Ellis, Founding Brothers: The Revolutionary
Generation (2000) 48–80. Limitation on state legislative power, and thus a much wider
protection of freedom of speech, did not come until much later: see Gitlow, 268 US 652
(1925). A curiously parallel concern about national but not State restrictions on religious
freedom was expressed at the Australasian Constitutional Convention in Melbourne by
Henry Higgins, a representative from Victoria (and later a High Court Justice): Official
Record of the Debates of the Australasian Federal Convention, Melbourne, 7 February 1898, 654–
7 (Henry Higgins).
112 See generally above n 7.
113 Lange (1997) 189 CLR 520, 567.
114 See generally above, nn 42–53; APLA (2005) 79 ALJR 1620; 219 ALR 403.
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elusive. In his Theophanous dissent, Brennan J quoted from his ACTV judgment, saying,
as to a personal right, 'the scope … must be ascertained in order to discover what is left
for legislative regulation.' He contrasted that to a freedom of a kind that was 'an
immunity consequent on a limitation of legislative power.' 115
If the freedom to discuss government were understood to be a personal freedom, it
would be open to the Court to define it in qualified or limited terms … But if the freedom
to discuss government be the consequence of a limitation on power, the issue … is
whether the laws of defamation, in their application to the facts … are valid. 116
The real difference in this distinction is not easy to see. In either case, the Court
must make a determination whether the law would be unconstitutional as applied to
particular facts on the basis of the Court's judgment about the effect of the implied
freedom on the exercise of an otherwise valid legislative power.
A clue to the Court's concern might be taken from the wide-ranging debate among
constitutional scholars concerning the difference between rights characterised as
'vertical' and 'horizontal.' 117 A fundamental right is vertical if it is limited to a right of
an individual against the state. A fundamental right is horizontal if it also provides a
cause of action on the basis of which a private individual can sue another private
individual or entity. In an isolated statement in the Theophanous plurality judgment,
Mason CJ and Toohey and Gaudron JJ said, '[t]his approach [of NY Times] does not
limit the protection to protection against government conduct.' 118 This might have
suggested, misleadingly, that the American and Theophanous approach was committing
Australia to the adoption of a horizontal rights theory. Accordingly, the Lange Court's
strong opposition to 'personal rights', might be understood to be a rejection of the
horizontal rights concept.
In context, however, it was clear that the plurality judgment was merely concurring
with the American position in NY Times that judicial enforcement of defamation laws,
whether common law or statutory, was action by the 'state'. Under the American 'state
action' doctrine, individual rights are protected only against action of the 'state' — ie,
the action of federal, state, or local government. 119 This, of course, means free speech
rights in the United States are firmly limited to the vertical side of the horizontalvertical divide. 120
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115 (1994) 182 CLR 104, 147–48.
116 Ibid 148.
117 See David Feldman, 'The Human Rights Act 1998 and Constitutional Principles' (1999) 19
Legal Studies 165; Conor A Gearty, 'Unraveling Osman' (2001) 64 Modern Law Review 159;
Anthony Giddens, 'Risk and Responsibility' (1999) 62 Modern Law Review 1; Lord
Hoffmann, 'Human Rights and the House of Lords' (1999) 62 Modern Law Review 159;
Murray Hunt, 'The "Horizontal Effect" of the Human Rights Act' (1998) Public Law 423;
Giorgio Monti, 'Osman v UK — Transforming English Negligence Law into French
Administrative Law' (1999) 48 International and Comparative Law Quarterly 757; Sir Stephen
Sedley, 'The Common Law and the Political Constitution: A Reply' (2001) 117 Law Quarterly
Review 68; Stone, above n 6, 401–4.
118 (1994) 182 CLR 104, 130; and citing for the same proposition, Lingens v Austria (1986) 8
European Human Rights Reports 407; Oberschlick v Austria [1991] 204 Eur Court HR (ser A)
30, interpreting art 10 of the European Convention on Human Rights.
119 See Laurence H Tribe, American Constitutional Law (2nd ed, 1988) §§ 5–15, 18–1 to 18–7.
120 That determining which actions are 'actions' of the 'state' can be an elusive question is
recognised and well demonstrated by Dr Stone. See Stone, above n 6, 403–04, 415–17.
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Thus, the constitutional jurisprudence in both Australia and the United States has
opted for the vertical conception of rights and freedoms. Recognising that the freedom
of political communication applies directly to the common law does not change that in
the United States. The position the High Court had adopted in its Theophanous
judgment would not have changed it in Australia. In short, the basis for a contrast
between American personal rights and the Australian limitation on legislative power
cannot be found in the distinction between vertical and horizontal rights. 121
III
BACKING INTO THE FUTURE
None of the several comparisons with American constitutional law in the Lange Essay
provides a really satisfactory explanation for the rejection of the Theophanous (and
American) approach in favour of the Lange approach — or, more precisely, an
explanation that demonstrates the importance of the change of approach. If we return
to the genesis of the Lange Essay on the 'common law and the Constitution', it will be
recalled that the Essay entailed an undertaking to 'consider the relationship between
the Constitution and the freedom of communication which it requires on the one hand
and the common law and the statute law which govern the law of defamation on the
other.' 122 The High Court placed its consideration in the framework of the evolution
from English to Australian constitutional law. In doing so, the High Court pointed out
the difference between the treatment of the common law under Australian and
American constitutional federalism. Under the American fragmented common law,
each state has its own common law and the United States Supreme Court has no
jurisdiction to determine what the common law of the states is. As a consequence, as
the High Court observed, Australian but not American constitutional law permits the
highest court under the national Constitution to develop the common law to bring it
into accord with the Constitution. But that distinction did not require a rejection of the
American approach adopted in Theophanous, and it did not bring about any real
difference in the substance of Australian constitutional law. What the Court's
comparison shows to be truly a matter of substance is what the Australian and
American constitutional systems shared as they separated from English constitutional
law: the supremacy of the written Constitution over all other law. As the Lange Essay
makes clear, that constitutional supremacy (for Australia and the United States) applies to
all sources of law — state and national; statute and common law.
Significantly, the Lange Essay's consideration of the relationship between the
common law and the Australian Constitution turned almost immediately to the
relationship between the common law and parliamentary sovereignty and,
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121 Closely related to the state versus private action aspect of the American state action
doctrine is the concept of negative versus affirmative rights: the Constitution does not
interfere with private action and it does not require the government affirmatively to help
constitutional right holders; if it did, the obligation of the government not to interfere
would turn into an obligation to facilitate private actions. McClure v Australian Electoral
Commission (1999) 163 ALR 734, 740–41 (Hayne J), denied a request for affirmative relief to
order the media to cover the petitioner's election campaign. In that case, Hayne J quoted
Lange (1997) 189 CLR 520, 560, pointing out that the freedom of political communication
was 'negative in nature' and did not 'confer personal rights.' That decision, for that reason,
is entirely consistent with American freedom of speech law.
122 (1997) 189 CLR 520, 562.
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significantly, it did so in the words of Sir Owen Dixon. Plainly, the High Court was
drawing strength into its Essay from Dixon's immense stature. 123 It seems appropriate,
therefore, to place the Essay's use of Dixon's words in the broader context of his work
through which the Court was considering the common law, federalism, and
parliamentary sovereignty. In this way, I will treat the Essay as an invitation to take
Dixon's words as a guide to extend the Australian-American comparison concerning
political communications. The Lange Essay does not juxtapose parliamentary
sovereignty and American constitutional law, but Sir Owen Dixon did so.
A
Federalism and parliamentary sovereignty
1
Sir Owen Dixon on the Common Law and Parliamentary Sovereignty in
Australia and the United States. The Lange Essay twice refers to the connection
between the common law and parliamentary sovereignty. 124 One of these references,
emphasising the common law source of parliamentary sovereignty, also presents a
theme that is repeated in Sir Owen Dixon's extrajudicial scholarship: the 'conception of
the complete supremacy of Parliament', Sir Owen said,
may be considered as deriving its authority from the common law rather than giving
authority to the common law. But, after all, the common law was the common law of
England. It was not a law of nations. It developed no general doctrine that all legislatures
by their very nature were supreme over the law. 125
This theme, that parliamentary sovereignty was not a law of nature, but a product
of the common law of England, was a critical part of Sir Owen's reasoning as a Justice of
the High Court in his very important judgment 126 in the Trethowan Case. 127 The theme
was repeated in several Dixon lectures. 128 In a long and complex lecture delivered in
1935, 'The law and the Constitution', 129 Dixon discusses the tension between three
conceptions — the supremacy of law, the supremacy of the Crown, and the supremacy
of parliament — and their reconciliation in British constitutional theory. 130 He noted
the lack of attention 'given to the manner in which the idea of legislative sovereignty
has operated to modify the conception of the supremacy of the law.' 131
Wherever the common law has gone, the theory of the supremacy of the law has
necessarily gone with it. But the theory of legislative sovereignty stands in a different
position. Its transfer to lands outside Britain was less easy. For the common law, being
_____________________________________________________________________________________
123 See Philip Ayres, Owen Dixon (2003); Mason, above n 15, 878–79; Michael Wait, 'The
Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' (2001) 29
Federal Law Review 57.
124 (1997) 189 CLR 520, 562, 564.
125 (1997) 189 CLR 520, 562, quoting from Jesting Pilate, above n 9, 199–200.
126 See R F V Heuston, Essays in Constitutuional Law (2nd ed, 1964), 14–15, 23–24.
127 See Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; (1932) 47 CLR 97, in which
Dixon J applied this analysis, qualifying parliamentary sovereignty in Australia, to find
invalid legislation that purported to eliminate the upper house of the New South Wales
Parliament without following the required procedures for doing so.
128 See Jesting Pilate, above n 9, 42; 199–200; 206–07.
129 Some aspects of this lecture (characterised by Dixon's biographer as a 'major paper', Philip
Ayres, Owen Dixon (2003) 67) were repeated much later, in 1957, in his lecture entitled, 'The
Common Law as the Ultimate Constitutional Foundation' in Jesting Pilate, above n 9, 203.
130 See Jesting Pilate, above n 9, 39.
131 Ibid 42.
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English law, and not a ius gentium, did not recognize the sovereignty of a legislature as an
abstract idea, as a quality belonging to a legislature inherently. 132
The supremacy 'over the law' was a unique feature of the Parliament at
Westminister. Legislatures were created outside England through the authority of the
common law.
But at common law such a legislature was not supreme over the law. Its powers were
limited by the law. Those limitations might arise from the express terms of the
instrument creating it … from [a territorial restriction,] from a legal doctrine, somewhat
vague and obscure, that none of its enactments should be repugnant to the basal
principles of the common law. 133
If the legislature attempted to go beyond these limitations, 'its enactment would be
simply nugatory and void.' 134
Sir Owen said that 'the fundamental idea of the supremacy of the law was rooted in
the common law.' 135 He observed that 'British parliamentary sovereignty' was
'renounced' by the American constitutional system, which elevated 'the conception of
the supremacy of the law.' 136
It is of the essence of parliamentary sovereignty that the courts of law, once there is put
before them an authentic expression of the legislative will, shall give unquestioned effect
to it according to what appears its true scope and intent. But it is of the essence of the
supremacy of the law that the courts shall disregard as unauthorized and void the acts of
any organ of government, whether legislative or administrative, which exceed the limits
of the power that organ derives from the law. This was the constitutional position of the
thirteen American colonies when they declared their independence. Their revolt was
against the supremacy of the British Parliament. The Declaration of Independence,
therefore, might be thought to imply the transfer of that supremacy to their own
legislatures. 137 But such a view was inconsistent with republican principles which
included the doctrine that the ultimate source of governmental power was in the
governed. 138
Despite the fascination and influence of American federalism on the framers of the
Australian Constitution, according to Dixon, 139 Australian constitutional law did not
follow the United States in rejecting, totally, parliamentary sovereignty. 140 But Dixon
_____________________________________________________________________________________
132 Ibid.
133 Ibid 43.
134 Ibid.
135 Ibid 51.
136 Ibid 44.
137 As assumed in Australia. See ibid 44–47.
138 Ibid 43. Sir Owen's description of 'governmental power ... in the governed' anticipated the
words of Alexander Meiklejohn over a decade later. In the first chapter of Free Speech and Its
Relation to Self-Government (1948), 'The Rulers and the Ruled' Meiklejohn explained, '[f]ree
men are not non-governed. They are governed–by themselves': at 16. Dixon’s diaries exist
for this period (1935–65) and are said to have listed books he was reading. But the diaries
are not generally available. See Philip Ayres, 'Dixon Diaries' in Tony Blackshield, Michael
Coper and George Williams (eds), The Oxford Companion to the High Court (2001) 222, 224.
139 Jesting Pilate, above n 9, 44; see above, text accompanying nn 9, 16.
140 Compare Wait, above n 123, 73 ('it is now difficult to find an Australian constitutional
lawyer who still adheres to the doctrine of parliamentary sovereignty') with Julie Taylor,
'Human Rights Protection in Australia: Interpretation Provisions and Parliamentary
Supremacy' (2004) 32 Federal Law Review 57, 59 (quoting Dawson J: 'there can be no doubt
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argued that federalism itself, entrenched in Australia's rigid constitution, did
eventually 141 provide a significant check on parliamentary sovereignty:
[U]ntil lawyers became accustomed to the working of a federal system, the conception of
parliamentary supremacy over the law dominated their thoughts. The rival conception of
the supremacy of the law over the legislature is the foundation of federalism. Under that
system, men quickly depart from the tacit assumption to which a unitary system is apt to
lead that an Act of Parliament is from its very nature conclusive. They become
accustomed to question the existence of power and to examine the legality of its exercise.
Nothing has had so profound an influence upon legal ideas in this country as the
establishment of the federal constitution — the greatest event in our political and legal
development. 142
2
Political Communication and Federalism limits on Legislative Power. Justice
Dixon (as he then was) supplied a memorable example of the significance of his views
on federalism — of just how 'profound an influence' on Australian constitutional law
'the establishment of the federal constitution' can have in protecting individual rights.
In his much-cited statement in Australian Communist Party v The Commonwealth, 143 this
reasoning was the basis of the High Court’s determination that the Commonwealth
Parliament had exceeded its legislative powers in enacting the Communist Party
Dissolution Act 1950 (Cth): 144
The [Commonwealth legislative] power is ancillary or incidental to sustaining and
carrying on government. Moreover, it is government under the Constitution and that is
an instrument framed in accordance with many traditional conceptions, to some of which
it gives effect, as, for example, in separating the judicial power from other functions of
government, others of which are simply assumed. Among these I think that it may fairly
be said that the rule of law forms an assumption.
The federalist basis of this reasoning is, of course, a text-and-structure-based reading of
a rigid constitution.
The 'profound … influence' of a federal constitution in Australia had prevented the
abridgement of political speech before Lange — and before Theophanous, Stephens,
ACTV, and Nationwide News. The classic example is Davis v The Commonwealth. 145 In
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that parliamentary supremacy is a basic principle of the legal system which has been
inherited in this country from the United Kingdom'); Jeffrey Goldsworthy, 'The
Philosophical Foundations of Parliamentary Sovereignty' in Tom Campbell and Jeffrey
Goldsworthy (eds), Judicial Powers, Democracy and Legal Positivism (2000), 229–50.
141 In fact, Sir Owen pointed out in this lecture that 'it may seem remarkable that so long a
time should elapse' before the limits of parliamentary supremacy in Australia should be
seen. Dixon's application of those limits in his Trethowan judgment, delivered only four
years before the lecture, certainly had not been generally foreseen and accepted.
142 Jesting Pilate, above n 9, 51.
143 (1950) 83 CLR 1.
144 Ibid 193.
145 (1988) 166 CLR 79. See also Burns v Ransley (1949) 79 CLR 101, 110 (the Commonwealth 'has
no power to pass a law to suppress or punish political criticism') (Latham CJ, dictum); at
116–8 (reading facts not to support conviction under criminal sedition statute because
words of defendant on which the conviction was based were 'not expressive of an intention
to effect' the 'purpose of exciting disaffection') (Dixon J, dissenting). Despite an evenly
divided High Court in Burns, the conviction was affirmed by the casting vote of Chief
Justice Latham: (1949) 79 CLR 101, 111. But see Michael Coper, 'Tied Vote' in
A R Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the
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that case, the Court was faced with a statute enacted to facilitate the celebration of
Australia's Bicentennial, the 200th anniversary of British ships sailing into Sydney
Harbour. As part of this statutory scheme, a Bicentennial Authority was created and
given a monopoly over a number of common words, such as 'Australia' or 'Sydney' in
conjunction with '1788'. These words could not be used without the Bicentennial
Authority's permission, and the Authority withheld permission from certain
Aboriginal groups that wanted to raise questions about the unqualified beneficence of
the advent of white settlement on the Australian continent. As considered by the
Court, the issue was whether the Commonwealth Parliament and the Executive had
been granted power under ss 51(xxxix) and 61 of the Commonwealth Constitution to
enact this aspect of the legislation. The Court determined that this power did not exist,
and there is no doubt that its determination was decisively influenced by the judgment
that the legislation undermined the 'fundamental value' of freedom of expression, 146 as
Mason CJ later called it in his Nationwide News judgment. Davis, in short, is a
federalism decision critically spiced with a free speech flavour.
Under the usual principles of federalism, a challenged statute must be sufficiently
related as a means of exercising one of the specified national powers. 147 The courts in
Australia (like those in the United States) would ordinarily take a deferential approach
to the legislature and answer the question in favour of the power if there was a
reasonable (or, perhaps, even plausible) interpretation that would produce that result.
In exceptional cases, when special values — like free expression — are adversely
affected, deference goes down and the possibility that the existence of Commonwealth
legislative power will be found wanting is greatly enhanced — as occurred in the Davis
case. 148 In Nationwide News, three concurring Justices based their judgments on the
_____________________________________________________________________________________
High Court of Australia (2001) 672 (suggesting that the statutory authorisation for such a tiebreaking vote by the Chief Justice may be unconstitutional). Justice Dixon's reasoning in his
Burns dissent is strikingly reminiscent of that of Judge Learned Hand in Masses Publishing
Co v Patten, 244 Fed 535 (SDNY, 1917), in which Judge Hand read an American federal
statute narrowly, requiring very specific intentional words of incitement, to avoid a
confrontation with fundamental principles of democratic government. Although Judge
Hand's decision was reversed by the United States Court of Appeals for the Second Circuit,
246 Fed 24 (1917), there are persuasive reasons for thinking that the Hand Masses opinion
has been rehabilitated by the United Supreme Court in Brandenburg v Ohio, 395 US 444
(1969). See Gerald Gunther, 'Learned Hand and the Origins of the Modern First
Amendment Doctrine: Some Fragments of History' (1975) 27 Stanford Law Review 719.
146 (1988) 166 CLR 79, 100 (Mason CJ and Deane and Gaudron JJ); 101 (Wilson and Dawson JJ);
104, 115–17 (Brennan J); 117 (Toohey J).
147 See Nationwide News (1992) 177 CLR 1, 26–29 (Mason CJ); Al-Kateb v Godwin (2004) 219 CLR
562, [130] (Gummow J) ('appropriate and adapted' to achieving an end within a legislative
power).
148 Justice Toohey, writing extrajudicially in a law review article published
contemporaneously with the announcement of the ACTV and Nationwide News judgments,
suggested a line of argument that would convert the specific result of Davis and the
Nationwide News concurrence into a broad general principle creating a presumption in
favour of all 'fundamental common law liberties'. Justice John Toohey, 'A Government of
Laws, and Not of Men?' (1993) 4 Public Law Review 158, 170. Justice Toohey's argument has
been strongly criticised: see George Winterton, 'Constitutionally Entrenched Common Law
Rights: Sacrificing Means to Ends' in Charles Sampford and Kim Preston (eds), Interpreting
Constitutions: Theories, Principles and Institutions (1996) 133, 135 ('audacious and
imaginative', but 'untenable'); Jeffrey Goldsworthy, 'Implications in Language, Law and the
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ground of lack of national legislative power. Chief Justice Mason reached that
conclusion only by giving significant weight in the balance to the freedom of
expression: 149
[I]n determining whether that requirement of reasonable proportionality is satisfied, it is
material to ascertain whether, and to what extent, the law goes beyond what is
reasonably necessary or conceivably desirable for the achievement of the legitimate
object sought to be attained and, in so doing, causes adverse consequences unrelated to
the achievement of that object. In particular, it is material to ascertain whether those
adverse consequences result in any infringement of fundamental values traditionally
protected by the common law, such as freedom of expression. 150
Under the Australian — and American — pattern of federalism, however, the States
ordinarily have the legislative power not assigned to the national government. The
Tenth Amendment of the United States Constitution expressly provides that 'powers not
delegated' to the national government are 'reserved to the states'. 151 Australian States
do not have reserved power. The legislative power of both the Commonwealth and the
States came directly from the Imperial Parliament in London in 1901. Nevertheless, as
a practical matter, Australian States do have residual legislative power. As Sir Owen
Dixon put it, '[s]ection 107 of the Commonwealth Constitution performs the office of
the Tenth Amendment …'. 152
Under this federal structure, the Court's decision in Davis or the concurring
judgments in Nationwide News appear to leave the State Parliaments free to impose
legislative restrictions withheld from the Commonwealth Parliament. 153 In Lange, for
example, the threat to the freedom of political communication came from a statute of
New South Wales, not the Commonwealth. But in the specific context of a federalist
limitation geared to an expressive freedom designed to perfect the true choice of voters
in national elections, section 107 is not well designed to give State Parliaments power
which the Commonwealth Parliament lacks. Section 107 provides, '[e]very power of
the Parliament of a Colony which … becomes a State, shall, unless [expressly limited]
… continue as at the establishment of the Commonwealth.' 154 Australian States could
not 'continue' to have a power which their predecessor Colonies never had. And those
Colonies did not have the power to affect adversely free Commonwealth elections
because there was no such thing as Commonwealth elections in the Colonies.
_____________________________________________________________________________________
Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law
(1994) 150, 174 (provides 'no support whatsoever'). But the more modest reading of
legislative powers to avoid significant, particular infringements of free expression seems
far less vulnerable in light of the narrowness of the limitation and the broad and deep
recognition of the free speech value throughout the British Commonwealth. See, eg,
Attorney-General v Times Newspaper Ltd [1974] AC 273, 315 (Lord Simon of Glaisdale);
Attorney-General v The Guardian [1987] 1 WLR 1248, 1286 (Lord Bridge, dissenting); SDGMR
v Dolphin delivery Ltd [1986] 2 SCR 573, 584.
149 (1991) 177 CLR 1, 29–34, 34; see at 88 (Dawson J); 103, 105 (McHugh J).
150 (1991) 177 CLR 1, 30–31.
151 The United States Constitution amend X.
152 Jesting Pilate, above n 9, 170.
153 See George Winterton, 'The Communist Party Case' in H P Lee and George Winterton
(eds), Australian Constitutional Landmarks (2003) 132; Leslie Zines, Constitutional Change in
the Commonwealth (1991) 40–41.
154 Commonwealth Constitution, s 107 (emphasis added).
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Of course, the Australian Colonies had — as their successor States now have —
subject matter power to legislate, in general, concerning the law of defamation. But
that is not the question. In Davis, by analogy, the High Court did not question the
broad power of the Commonwealth to legislate concerning the Centennial celebration;
it was only the particular application of that power in its impact on freedom of speech
that was ultra vires. Similarly, the concurring Justices in Nationwide News did not
question the power of the Commonwealth Parliament to legislate on the subject of
industrial relations or for the protection of the Industrial Relations Commission; it was
only a particular application of that power that was not within ss 51(xxxv) and
51(xxxix). As a Justice of the High Court, Sir Owen Dixon made a similar distinction
concerning a State's residual ('continuing') power. Dixon did not question the general
power of the States to legislate concerning the winding up of an insolvent company.
But, in dissent in Uther's Case 155 and for the High Court in Cigamatic, 156 he concluded
that a State lacked power to subordinate Commonwealth claims to those of other
creditors. Section 107 was irrelevant, he said. 'The Colony of New South Wales could
not be said at the establishment of the Commonwealth to have any power at all with
reference to the Commonwealth.' 157 What is critical is not the correctness of the
Cigamatic principle, 158 but only the concept that a State, no less than the
Commonwealth, may exceed its acknowledged general legislative power in the context
of a particular application. 159
In sum, starting with the Communist Party and Davis cases, there was an alternative
theory for protecting political speech as an internal or intrinsic limitation of legislative
power — a limitation, in the words of the Lange Essay, resulting from a 'federal system
_____________________________________________________________________________________
155 Re Richard Foreman & Sons Pty Ltd; Uther v The Federal Commissioner of Taxation (1947) 74
CLR 508 ('Uther').
156 Commonwealth v Cigamatic Pty Ltd (1962) 108 CLR 372.
157 Uther (1947) 74 CLR 508; see Cigamatic (1962) 108 CLR 372, 378. Compare US Term Limits,
Inc v Thornton, 514 US 779, 802 (1995) (Tenth Amendment 'could only "reserve" that which
existed before'; quoting Justice Story's treatise, 'the states can exercise no powers
whatsoever, which exclusively spring out of the existence of the national government').
158 For reasons not relevant to the argument in the text, the Cigamatic principle has been
criticised — because of the difficulty of distinguishing the cases for which the principle
requires immunity for the Commonwealth from the generality of situations for which State
law does apply to the Commonwealth (such as the law of contracts) and because, with rare
exceptions, the Commonwealth does not need a broad immunity as it can protect itself
against adverse State legislation through Commonwealth legislation and the supremacy of
federal law under section 109. See Re Residential Tenancies Tribunal of New South Wales and
Henderson; Ex parte the Defence Housing Authority (1997) 190 CLR 410, 475 (Kirby J, dictum);
John Doyle, '1947 Revisited: The Immunity of the Commonwealth from State Law' in
Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 47; R P
Meagher and W M C Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal
25.
159 Cf re Residential Tenancies Tribunal of New South Wales and Henderson; Ex parte the Defence
Housing Authority (1997) 190 CLR 410, 507–08 (Kirby J, dictum) (the State 'could not
legislate in a way that would impair the integrity or autonomy of the Government of the
Commonwealth'); A R Blackshield, 'The Implied Freedom of Communication' in Geoffrey
Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232, 265 ('if any aspect
of Commonwealth institutions is to be "immune" from State laws, that immunity must at
least extend to Commonwealth political institutions, and especially to the Commonwealth
Parliament.')
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of government embodied in a written and rigid constitution.' 160 In Sir Owen Dixon's
words, '[t]he rival conception of the supremacy of the law over the legislature is the
foundation of federalism.' 161 The rationale actually adopted for protecting political
speech has been understood to be based on an external or extrinsic limitation coming
from outside legislative powers. 162 This actual rationale, too, might be explained,
speculatively, in Dixon's words: The Australian judiciary, having 'become accustomed
to question the existence of power and to examine the legality of its exercise', 163
applied its ingrained judicial independence beyond its federalist wellspring to find, in
a different text and structure of the Australian Constitution, an implied limit on all
legislative power (national or State) that would impermissibly interfere with the
freedom of political communication. 164
In fact, the line separating intrinsic and extrinsic limits on legislative power is often
very thin. 165 Plainly, simultaneous intrinsic limits on both national and State
legislative power look very much like an extrinsic limit. Plainly, too, once one knows
that there is an extrinsic limit, it follows that an otherwise available legislative power
cannot be validly used in a way that the extrinsic limit prohibits. The Australian
(though not the American) Constitution underlines this point by qualifying all heads of
national legislative power with the limiting phrase, 'subject to this constitution.' 166 The
characterisation of the freedom of political communication as a 'restriction on
legislative power' 167 fits either rationale. As the High Court put it, clearly yet
ambivalently, in its Lange Essay, '[t]he Constitution displaced, or rendered
inapplicable, the English common law doctrine of the general competence and
unqualified supremacy of the legislature. It placed upon the federal judicature the
_____________________________________________________________________________________
160 Lange (1997) 189 CLR 520, 562.
161 Jesting Pilate, above n 9, 51.
162 See above, text accompanying nn 2–6, 23–53.
163 Jesting Pilate, above n 9, 51. Although Dixon specifically referred to 'men' and 'lawyers',
ibid, it seems fair to assume he was talking about the judiciary as well.
164 It may seem ironic to associate Sir Owen Dixon with the implied freedom of political
communication even obliquely, given the controversial nature of the implication and the
identification of Dixon with 'strict legalism' stemming from his lecture on becoming Chief
Justice, Jesting Pilate , above n 9, 247, 249. But he was not hostile to implications, see ACTV
(1992) 177 CLR 106, 134–36 (Mason CJ), and it is recognised that his legal thinking was not
rigid, see Mason, above n 15, 873; Justice Kenneth Hayne, 'Owen Dixon' in Tony
Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High
Court of Australia (2001) 220. Dixon fully appreciated the riddle posed by the duality of the
common law as both source of and subordinate to the Constitution, Jesting Pilate, above n 9,
207–13, and he even saw the occasion for discussing the riddle as an opportunity for
playfulness: at 211–13.
165 See Blackshield, above n 159, 235–39.
166 In their separate concurring judgment based on the implied (extrinsic) freedom in
Nationwide News, Toohey and Deane JJ gave considerable emphasis to this language
limiting the heads of legislative power under section 51. See (1992) 177 CLR 1, 68–69, 79. In
deciding that the Constitution contained an implied prohibition protecting political
communications, Gaudron J not only pointed to this same language but adopted the very
same test as that used by Mason CJ and McHugh J, who were relying upon the federalism
(intrinsic) ground of lack of legislative power: at 94–95 ('appropriate and adapted' to a
permissible end).
167 Lange (1997) 189 CLR 520, 561.
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responsibility of deciding the limits of the respective powers of State and Commonwealth
governments.' 168
B
The common law and constitutional methodology
Although the constitutional freedom of political communication is described in the
Lange Essay as a 'restriction on legislative power', the Essay's heading concentrates our
attention on the relationship between '[t]he common law and the Constitution' and the
common law is put in a separate category. So, the shift from Theophanous to Lange might
seem to be a shift from the Constitution to the common law and might seem to be a
turning away from confronting the limits of 'a federal system of government embodied
in a written and rigid constitution' 169 and to relieve the Court of the need, learned
from federalism according to Sir Owen Dixon, 'to question the existence of power and
to examine the legality of its exercise.' 170
1 The Common Convenience and Welfare of Society. The common law emphasis
may give the Lange judgment the appearance of avoiding the constitutional dimension.
But the substance of the judgment is an entirely different matter. In fact, Lange
provides a framework for a continuing robust judicial role in protecting political
communication. While the Court may have seemed to back off the more assertive
position of ACTV, Nationwide News, Theophanous, and Stephens in the way the judgment
was presented, Lange laid the groundwork for a continuing judicial development of the
governing constitutional principle. 171 The source of this fertile future for the freedom
of political communication is revealed by comparing the dissenting Theophanous
judgment of Brennan J (as he then was) with the language of the unanimous Court in
Lange. The following are excerpts from the former:
The function of this Court … depends on the law under consideration. The role of judicial
policy — a court's opinion as to what the law should be as distinct from what the law is
or has hitherto been generally thought to be — in determining the content of the law
varies according to the category of law under consideration: common law, statutes or the
Constitution. … [T]he legitimate role of judicial policy in the exercise of judicial power is
limited both by the Constitution's denial of legislative power to Ch III courts and by
restrictions which are inherent in the judicial method.
Common law is amenable to development by judicial decision, subject to the Constitution
and to statute. What is permissible development of the common law by the courts and
what amounts to impermissible change is an issue on which minds differ most
sharply. 172
Justice Brennan then lists several considerations that a court may take into account
and concludes:
[I]t is clear that judicial development of the common law is a function different from the
judicial interpretation of statutes and of the Constitution. In the development of the
common law, judicial policy has a role to perform …; in the interpretation of statutes,
judicial policy is alien to the task of exegesis.
_____________________________________________________________________________________
Ibid 564 (emphasis added).
Ibid 562.
Jesting Pilate, above n 9, 44.
Zines, above n 34, 227 ('tone more than substance that seemed to presage a new more
legalistic attitude').
172 Theophanous (1994) 182 CLR 104, 142 (Brennan J, dissenting)
168
169
170
171
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In the interpretation of the Constitution, judicial policy has no role to play … [I]n the
interpretation of the Constitution judicial policy provides no leeway for judgment as it
does when the Court is developing the common law. 173
The following is a statement in Lange explaining how it was that the English
common law of defamation had changed since 1901 when the Commonwealth
Constitution took effect:
Since 1901, the common law — now the common law of Australia — has had to be
developed in response to changing conditions. The expansion of the franchise, the
increase in literacy, the growth of modern political structures operating at both federal
and State levels and the modern development in mass communications, especially the
electronic media, now demand the striking of a different balance from that which was
struck in 1901…
The factors which affect the development of the common law equally affect the scope of
the freedom which is constitutionally required. 'T]he common convenience and welfare
of society' is the criterion of the protection given to communications by the common law
of qualified privilege. Similarly, the content of the freedom to discuss government and
political matters must be ascertained according to what is for the common convenience
and welfare of society. That requires an examination of changing circumstances and the
need to strike a balance in those circumstances between absolute freedom of discussion of
government and politics and the reasonable protection of the persons who may be
involved, directly or incidentally, in the activities of government or politics. 174
So, according to the Theophanous dissent, 'judicial policy has a role to perform' in
interpreting the common law, but '[i]n interpreting the Constitution, judicial policy has
no role to play'. 175 Yet, in Lange, the same factors determine the common law and
constitutional law; the 'common convenience and welfare of society' is the criterion
which governs both the common law and the Constitution, and both the common law
and the Constitution require 'an examination of changing circumstances and the need to
strike a balance in those circumstances…'. 176
According to the Theophanous dissent, the Court lacks the power to 'develop'
constitutional law; 177 yet, where the Lange judgment refers to 'the factors which affect
the development of the common law', it says that those factors 'equally affect the scope of
the freedom which is constitutionally required.' 178 When the same factors determine
legal results, any difference between characterising the process in terms of affecting
'development' and affecting 'scope' appears to be trivial.
The Theophanous dissent said that constitutional interpretation by the Court cannot
be influenced by what the Court 'perceives to be desirable policy' 179 and in
interpreting the Constitution 'judicial policy provides no leeway for judgment as it does
when the Court is developing the Common law.' 180 When the factors which the Court
listed in Lange — 'expansion of the franchise, the increase in literacy, the growth of
modern political structures operating at both federal and State levels and the modern
_____________________________________________________________________________________
173 Ibid 143–44.
174 Lange (1997) 189 CLR 520, 565–66.
175 Theophanous (1994) 182 CLR 104, 143–44.
176 Lange (1997) 189 CLR 520 , 565.
177 Theophanous (1994) 182 CLR 104, 143.
178 Lange (1997) 189 CLR 520, 565 (emphasis added).
179 Theophanous (1994) 182 CLR 104, 144.
180 Ibid.
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development in mass communications, especially the electronic media' 181 —
determine the scope of the implied freedom, that is not a mechanical reading of the
constitutional text. They are factors which the Court, in its judgment, concludes are
changing circumstances relevant to determining what the constitutional freedom
should be understood to mean.
To be sure, the dissent in Theophanous recognised that 'changing conditions' have a
'changing effect.' 182 And, keeping in mind that the Theophanous dissent was a dissent,
the contrast may appear to be more of a continuum than a change. 183 Still, the Court in
Lange was unanimous and the dissenter in Theophanous was now the Chief Justice and
part of that unanimity; no doubt an important part. The judicial function in
constitutional interpretation contemplated by Lange and its merging with the judicial
function in interpreting the common law counters the possible impression of
retrenchment that one might otherwise attribute to the Lange decision's focus on the
common law.
2
The Common Law and the Common Law Methodology. If attention is
concentrated on the fact that the High Court has judicial power to define and develop
the common law, the difference between Australian and American constitutional law is
highlighted. That contrast is in the forefront of the Lange judgment. But when attention
is focused on the substance of the common law methodology which may guide the
constitutional interpretation (and simultaneously control the common law), a very
different picture emerges.
Writing about the High Court's constitutional work in the '2002 Term', Justice
Susan Kenny 184 concluded that 'the common law constitutional method took priority
over other interpretive approaches.' 185 Citing the work of American scholars, 186
Kenny J described this approach (which she also calls 'doctrinal') as depending 'on the
claim that principles may be derived from the Court's previous authorities relevant to
the resolution of the constitutional question at hand.' 187
According to Kenny J, the virtues of the common law approach to constitutional
law 'are largely the virtues of the common law. In interpreting the constitutional text
by reference to prior authorities, the Court promotes the values of continuity, stability,
and predictability.' 188 At the same time, Kenny J points out, 'the common law
constitutional method' does not 'necessarily promote rigidity, or an unimaginative
_____________________________________________________________________________________
181 Lange (1997) 189 CLR 520, 565.
182 Ibid 143.
183 Zines, above n 34, 227. Compare Sir Anthony Mason, 'The Role of a Constitutional Court in
a Federation: A Comparison of the Australian and the United States Experience' (1986) 16
Federal Law Review 1, 28 with Sir Gerard Brennan, 'A Tribute to Sir Anthony Mason' in
Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 13.
184 Judge of the Federal Court of Australia.
185 Susan Kenny, 'The High Court on Constitutional Law: The 2002 Term' (2003) 26 University
of New South Wales Law Journal 210, 217.
186 Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982), 43; Stephen M Griffin,
American Constitutionalism: From Theory to Politics (1996) 150; Robert C Post, 'Theories of
Constitutional Interpretation' in Post (ed), Law and the Order of Culture (1991) 20; David
A Strauss, 'Common Law Constitutional Interpretation' (1996) 63 The University of Chicago
Law Review 877, 879.
187 Kenny, above n 185, 217.
188 Ibid 219.
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application of the decisions of the past to the questions of the present … [T]he method
permits the evolution of constitutional principle, although on a gradual or incremental
basis …'. 189
One of the cases specifically relied upon by Kenny J to elaborate this method was
Roberts v Bass, 190 in which various members of the Court applied Lange to resolve the
question whether, under the facts and in the procedural setting of Roberts v Bass, the
freedom of political communication required the common law of defamation to
provide the 'extended form of qualified privilege' adopted in Lange. 191 The Justices
were clearly focused on the constitutional question, and they were clearly applying a
common law methodology. For example, the joint judgment of Gaudron, McHugh and
Gummow JJ, explores what the common law qualified privilege entailed, 192 points out
that Lange did not exhaust 'the constitutional freedom's impact on the law of
defamation,' 193 and describes in detail why the relevant 'circumstances' 194 required
that the common law be developed to avoid unconstitutional chilling of political
speech under Lange's governing test. 195
Prior to Roberts v Bass, the common law methodology had been applied by the High
Court in Levy, 196 and by Kirby J's dissenting judgment in Lenah Game Meats, 197 decided
in 2001 between Lange and Roberts v Bass. 198 In Levy, the Court rejected the freedom of
political communication argument, but it had no difficulty applying its precedents to a
novel setting (in Australian constitutional law) to recognise that symbolic expression
was an important means of communicating political ideas and that the concern about
_____________________________________________________________________________________
189 Ibid. Justice Kenny further observes that the evolution is not always 'completely rational or
satisfactory', is 'more deliberate and self-conscious,' and is 'open' to the Court to 'depart
from and overrule previous authorities', when the Court is persuaded 'for some sufficient
reason.'
190 (2002) 212 CLR 1.
191 Kenny, above n 185, 218. As interpreted and applied by Kenny J, a controlling question was
whether this newly created common law doctrine did or did not 'trespass into the
constitutionally protected freedom of communication in matters of government and
politics': at 218.
192 Roberts v Bass (2002) 212 CLR 1, 29–40.
193 Ibid 29.
194 See above, text accompanying nn 174–81.
195 See Roberts v Bass (2002) 212 CLR 1, 40–41. Chief Justice Gleeson and Justice Hayne
concluded that the procedural setting of Roberts v Bass made it an inappropriate case for
developing the common law under Lange ((2002) 212 CLR 1, 9, 79); Kirby J concurred in the
plurality judgment for the same reasons: at 71; Callinan J dissented on the ground that the
Lange 'defence' was not available and would fail if it were: at 107.
196 (1997) 189 CLR 579; see above, text accompanying nn 40, 50, 53.
197 Lenah Game Meats (2001) 208 CLR 199, 259 (Kirby J). A very interesting statistical analysis of
the Gleeson High Court shows Kirby J to be a non-representative Justice on the basis of his
judgments: Andrew Lynch, 'The Gleeson Court on Constitutional Law: An Empirical
Analysis of Its First Five Years' (2003) 26 Uiversity of New South Wales Law Journal 32, 47–49.
In the article, Lynch speculates about whether Kirby's frequent non-alliance with the other
Justices earns him the label of 'Great Dissenter'; but, using Oliver Wendell Holmes as the
model bearer of that label, he suggests waiting for the judgment of time to determine
whether the Kirby dissents, like those of Holmes, tend to turn into majority views: at 48.
198 Justice Kenny provides other examples outside the political communication area, and her
position was that the common law was the dominant methodology in constitutional law,
generally, in 2002.
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the treatment of animals was an important political issue. In Lenah Game Meats (also
involving animal welfare), in connection with a novel and rejected invasion of privacy
claim, Kirby J argued that there was a prima facie privacy claim that would support
the issuance of an interlocutory injunction, but concluded after a thorough
consideration of the competing interests that the freedom of political communication
foreclosed enjoining the broadcast of confidential information. 199 Subsequent to the
2002 Roberts v Bass case, in Coleman v Power, 200 the communication claiming
constitutional protection was insulting language addressed to an arresting police
officer. Influenced by English, American, New Zealand, and Australian case law, a
divided High Court, in six separate judgments, assessed the scope of the protected
freedom and the applicability of the Lange test. 201 Decided in the same year as Coleman,
Mulholland v Australian Electoral Commission, 202 in rejecting the political communication
argument, used a common law methodology in comparing and distinguishing prior
cases involving the freedom of political communication. 203
The common law methodology is evolutionary, and the details of what is covered
and what is protected are worked out only over a long period of time. As the Court
said in Lange, 'the content of the freedom to discuss government and political matters
… requires an examination of changing circumstances and the need to strike a balance
in those circumstances between absolute freedom of discussion of government and
politics and the reasonable protection' of those who are affected by the discussion. 204
And as new problems arise, the existing doctrine must be brought to bear on the
problem at hand. Speaking of the constitutional defence to a defamation action in
Roberts v Bass, Callinan J said, '[i]t will take years, years of uncertainty and diverse
opinion for the Court to reach a settled view of the elements of the defence and the
way in which it is to be applied. Lange certainly does not exhaustively define its impact
on the law of defamation.' 205 Certainly, Lange does not exhaustively define its impact,
as Callinan J observed, and the timeline he described may actually be too short. In its
nature, the common law methodology is evolutionary and endless.
3
Common Law, Text and Structure, and Alexander Meiklejohn. As the
preceding discussion of cases indicates, Kenny J's recognition of the importance of the
common law methodology in a particular year of High Court decisions does not
suggest that that methodology was limited to that year. Plainly, for both Australian
and American constitutional law, that has been one of the models for explaining what
_____________________________________________________________________________________
199 Chief Justice Gleeson opined that the freedom was not a proper balancing factor for a trial
judge's discretionary decision whether or not to issue the injunction: Lenah Game Meats
(2001) 208 CLR 199, 219–20. Justice Callinan, dissenting, expressed a fundamental
disagreement with Lange and the judicial creation of the implied freedom and announced
his intention to resist its expansive application: at 330–31.
200 (2004) 220 CLR 1.
201 See below, text accompanying nn 217–25.
202 (2004) 220 CLR 181.
203 Ibid 195 (Gleeson CJ, discussing ACTV and Levy); 206-7, 209-11, 212, 218-9, 219, 220
(McHugh J, discussing Nationwide News, Langer, ACTV, Muldoney, Levy, McClure, Kruger);
233, 240, 242 (Gummow and Hayne JJ, discussing Langer, McClure, ACTV); 252-3, 253-4
(Kirby J, discussing ACTV, Langer); 282-3 (Callinan J, discussing ACTV, Kruger); 299
(Heydon J, discussing ACTV).
204 (1997) 189 CLR 520, 565–66.
205 Roberts v Bass (2002) 212 CLR 1, 102.
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the courts do and should do in deciding constitutional issues. 206 Moreover, it is clear
from Kenny J's analysis that the common law constitutional methodology is in no way
inconsistent with the Lange Court's emphasis on 'text and structure.' 207 On the
contrary, the common law methodology describes a means of interpreting the
constitutional text and structure. 208 Indeed, once it is clear that the common law must
accord with the Constitution and that constitutional interpretation may follow a
common law methodology, Lange's limitation to 'text and structure' loses its surface
appearance of being narrow and restrictive.
The primary text to be applied, as spelled out in Lange, is found in sections 7, 24,
and 128 of the Constitution, giving the people the right to vote for Senators,
Representatives, and constitutional amendments. These provisions, in turn, are
supplemented by the many other textual provisions, also listed in the Lange
judgment, 209 which are all woven together into a structure which creates the system of
representative and responsible government providing the foundation for the freedom
of political communication. 210 The Court said pointedly in Lange, 'the relevant
question is not, "What is required by representative and responsible government?" It is,
"What do the terms and structure of the Constitution prohibit, authorise or
require?"'. 211 But the ultimate question remains: In what respects and to what extent
do the text and structure protect representative government by protecting the freedom
to communicate concerning political matters? The answer will not be found in a
dictionary but through the exercise of judicial judgment. 212
It is commonplace that freedom of expression owes its lofty position in many
different constitutional systems to the important values and interests it furthers, both
as a means of producing benefit to society and as an end in itself for individual human
beings. In addition to the interest in furthering democratic government, extensive
protection of free speech is justified on the ground that it is an instrumental means of
discovering truth and that it furthers the intrinsic values of self-realisation and
individual autonomy. 213 The absence of an open-textured provision like 'freedom of
_____________________________________________________________________________________
206 Zines, above n 15, Ch 17 (Methods, Techniques and Attitudes); David A Strauss, 'Common
Law Constitutional Interpretation' (1996) 63 The University of Chicago Law Review 877, 888
(with respect to American constitutional law: 'the common law model is . . . the best way to
understand what we are doing; the best way to justify what we are doing; and the best
guide to resolving issues that remain open'). Cf Fiona Wheeler, 'Due Process, Judicial
Power and Chapter III in the New High Court' (2004) 32 Federal Law Review 205 (describing
the evolutionary development of 'due process' even as the High Court's activism waxes
and wanes).
207 Kenny, above n 185, 222; see Strauss, above n 206, 880.
208 See Zines, above n 15, 433–44.
209 Australian Constitution ss 6, 49, 62, 64, 83; see also ss 1, 61, 62 cited in ACTV (1992) 177 CLR
106, 137.
210 (1997) 189 CLR 520, 567.
211 Ibid.
212 See Zines, above n 15, 433–44; Stone, above n 43. The assimilation of the common law
methodology and sundry versions of 'originalism' will often be complex and controversial.
See Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' (1997) 25 Federal Law
Review 1, 28–35; Justice Antonin Scalia, A Matter of Interpretation: federal courts and the law:
an essay (1997) 37–40.
213 See, eg, Eric Barendt, Freedom of Speech (1985) 8–23; Frederick Schauer, Free Speech: A
Philosophical Enquiry (1982) 15–72.
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expression' necessarily circumscribes any basis in Australian constitutional law for
giving significance to the recognised speech values linked to the discovery of truth or
to individual achievement of self-realisation or autonomy. 214 But the express textual
sources and related structure of the Australian Constitution emphatically provide a basis
for constitutionalising free speech protection that furthers the value of representative
government. 215
Despite its limitation to furthering only this one free speech value, the implied
freedom of political communication is potentially very broad. This potential breadth of
the constitutionally protected freedom has been underlined in cases decided since
Lange despite a changing High Court. 216 The High Court's recent decision in Coleman v
Power 217 well illustrates the elusiveness and the potential breadth of the freedom of
communication that is protected to further the interest of Australian representative
government based on the text and structure of the Australian Constitution. Coleman
was convicted for using insulting words — specifically for the statement, '[t]his is
_____________________________________________________________________________________
214 Freedom of speech giving rise to personal autonomy can also be related to the selfgovernment argument. Dr Adrienne Stone makes this point in 'Rights, Personal Rights and
Freedoms: The Nature of the Freedom of Political Communication', above n 6, 391–99. In
discussing a possibly expansive view of the freedom of political communication, Dr Stone
drew upon the debate between American scholars, Robert Post, 'Meiklejohn's Mistake:
Individual Autonomy and the Reform of Public Discourse' (1993) 64 University of Colorado
Law Review 1109, and Owen Fiss, 'Free Speech and Social Structure' (1986) 71 Iowa Law
Review 1405, who were arguing for rival free speech conceptions which instrumentally
serve democracy. Dr Stone noted that she has 'not discussed regulation of pornography
and hate speech . . . because it seems unlikely that the Australian courts would regard these
as political communication': Stone, above n 6, 399 n 136. For the most part, obscene
language, pornographic pictures, and sexually erotic dancing are protected as free
expression, if they are, because of the intrinsic freedom of individuals to say and hear what
they please for their own fulfilment, pleasure, or edification. These goals for free
expression, too, can be characterised in terms of autonomy, but that is not the autonomy of
Alexander Meiklejohn or the Australian Constitution. So, it is understandable that the
Australian courts would not be expected to protect pornography as political
communication. Different reasons would be required for excluding hate speech, which is
often impossible to disentangle from the kind of 'emotional, upsetting or affronting' words
that may be protected in Australia, as well as in the United States: Coleman v Power (2004)
220 CLR 1, [254] (Kirby J). Cf Virginia v Black, 538 US 343 (2003); RAV v City of St Paul, 505
US 377, 414 (1992) (White J)( 'expressive conduct that causes only hurt feelings, offense, or
resentment … is protected by the First Amendment'); 436 (Stevens J) (if expression is not
threatening, an individual 'is free to burn a cross … to express his views about racial
supremacy'); Henry Louis Gates Jr 'Let Them Talk' (1993) 209(12) The New Republic 37,
reviewing Mari Matsuda et al, Words That Wound (1993).
215 Lange (1997) 189 CLR 520, 557–62; ACTV (1992) 177 CLR 106, 141–42 (Mason C J).
216 See cases discussed above, in text accompanying nn 190–203. Writing before most of these
cases were decided, Dr Adrienne Stone observed 'a discernable trend towards narrowing
the coverage of the freedom' (Stone, above n 6, 383–400); but she nevertheless presented
strong arguments supporting a broad reading of the implied freedom (at 380–90).
217 (2004) 220 CLR 1. See Adrienne Stone and Simon Evans, 'Freedom of Speech and Insult in
the High Court of Australia' (2006) 4 International Journal of Constitutional Law 677; William
Buss, 'Constitutional Words About Words: Protected Speech and "Fighting Words" Under
the Australian and American Constitutions' (2006) 15 Transnational Law and Contemporary
Problems 489.
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constable Brendan Power, a corrupt police officer.' 218 A divided Court indicated that
this speech was constitutionally protected under the implied freedom. 219
Chief Justice Gleeson, noting that the appellant's conduct was 'not party political'
nor concerned with 'laws, or government policy' and that 'reconciling freedom of
political expression with the reasonable requirements of public order becomes
increasingly difficult when one is operating at the margins of the term "political"',
concluded that the speech could be prohibited under Lange to further the public
order. 220 Justices Callinan 221 and Heydon 222 agreed. In separate judgments, McHugh
J, 223 Gummow and Hayne JJ together, 224 and Kirby J, 225 all concluded that the
defendant's statement was a political communication within the protected freedom.
In the text of the United States Constitution, general 'freedom of speech' language
makes it is easy to argue, and for the courts to conclude (as they have), that all of the
possible free speech values are embraced by the constitutional wording. Against this
open-ended language, Alexander Meiklejohn argued that the purpose of 'free speech'
under the United States Constitution was not to further private interests, like selffulfillment, but should be limited to its role of furthering 'self-government.' 226 Clearly,
in American constitutional law, Meiklejohn lost this part of the debate. In a convoluted
way, one might say that Meiklejohn won the debate in Australia. By necessity, because
the value of free speech in furthering self-government is the only thing — the very
thing — which the text and structure of the Australian Constitution engender,
Australia's constitutionally protected freedom of communication is limited to that one
free speech value. That is the value that Meiklejohn regarded as the heart and soul of
free speech.
IV
CONCLUSION
It is important to remind myself and to remind my readers that I am an American
writing about Australian constitutional law. At one level, this is a comparative study,
but it is also primarily a study about Australian constitutional law and about a
particular case decided by the High Court of Australia. It is, specifically, a study of an
Australian constitutional law decision that has drawn upon American constitutional
law because of what the two constitutional systems share, but share with a difference.
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218 See, eg, (2004) 220 CLR 1, 14 (McHugh J).
219 Justice McHugh held that the statute as applied to this speech was unconstitutional (ibid
32); Gummow and Hayne JJ in a joint judgment (at 63) and Kirby J (at 80), all read the
statute narrowly, indicating that a broader reading applied to the defendant's speech
would have been unconstitutional.
220 Ibid 21.
221 Ibid 102.
222 Ibid 115.
223 Ibid 54 ('insults are a legitimate part of the political discussion protected by the
Constitution').
224 Ibid 78 ('insult and invective have been employed in political communication at least since
the time of Demosthenes').
225 Ibid 91 ('Australian politics has regularly included insult and emotion, calumny and
invective, in its armoury of persuasion').
226 Meiklejohn, above n 1, 39, 63.
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It has been my intention to take seriously and to respond to the High Court's analysis
which assumes a relevant Australian-American interrelatedness.
The unanimous Lange decision continues to be the leading case explaining
Australia's implied freedom of political communication. 227 At the centre of that
explanation was the High Court's focus, for Australia and the United States, on the
necessity of accommodating 'basic common law concepts and techniques to a federal
system of government embodied in a written and rigid constitution.' 228 In the words of
Sir Owen Dixon, 'the supremacy of the law was rooted in the common law' and the
'conception of the supremacy of the law over the legislature is the foundation of
federalism.' 229 At the very bull's eye of the Lange Court's explanation was the Court's
discussion of the difference between the accommodation of the common law and
federalism through the 'fragmented' American and the unified Australian
Constitutions. 230 The Australian-American difference in this respect provided part of
the Court's reasoning for not using the American approach that had been adopted in
Theophanous. But the significance of the shift from Theophanous to Lange seems
relatively modest; and the High Court's attention to American constitutional law
invites a broader consideration of the similarities and differences of American and
Australian protection of freedom of political expression.
Overriding Australian-American differences, each of the two Constitutions has a
text-based reason for protecting speech which furthers representative government.
Within their shared commitment to protect free speech which is political, Australia and
the United States share major freedom of speech territory.
Australia also shares with the United States a tradition of developing constitutional
law through a common law methodology. A common law constitutional methodology
commits a court to treating its own precedents as a dynamic source of law, sensitive to
changing circumstances made known to the court over time. The end product of a
common law constitutional line of development is further development. Although the
line of growth will be circumscribed by Lange's determination that representative
democracy must be limited to that which can be derived from the constitutional text
and structure, the broad scope and variety of communications affecting political
matters described in Lange and elaborated in other cases demonstrate that that
limitation need not be unduly constraining.
The constitutional common law methodology does not entail a commitment to any
particular substantive vision of freedom of political communication — certainly not to
the peculiar substantive view into which Meiklejohn's thesis took him, 231 nor to any
specific doctrines of American constitutional law. As the High Court made clear from
the beginning, Australia will forge its own view of what the freedom of political
communication requires. The constitutional jurisprudence that will further that value
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227 See APLA (2005) 79 ALJR 1620, 219 ALR 403.
228 (1997) 189 CLR 520, 562.
229 Jesting Pilate, above n 9, 51.
230 (1997) 189 CLR 520, 562.
231 See above, text accompanying n 42.
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in some particular direction in Australia might or might not make Meiklejohn dance in
the streets. 232
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232 Harry Kalven, 'The New York Times Case: A Note on "the Central Meaning of the First
Amendment"' (1964) Supreme Court Review 191, 221 n 125 (quoting Meiklejohn for the
proposition that NY Times, 376 US 254 (1964) was 'an occasion for dancing in the streets').