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Constitutional Law

Cases That May Be Useful

  • Australian Capital Television Pty Ltd and New South Wales v Commonwealth [1992] HCA 45
  • Nationwide News Pty Ltd v Wills [1992] HCA 46
  • Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104
  • Stephens v West Australian Newspapers (1994) 182 CLR 211
  • Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
  • Coleman v Power (2004) 220 CLR 1
  • McCloy v New South Wales [2015] HCA 34
1. The Cth parliament has passed the Government Neatness Act, the effect of which is to improve standards in the Cth Parliament. In the new Act, the requirement is that all male members must have standardised crew cuts, wear no head coverings and that beards and moustaches are forbidden.

you have three clients, one of the Judaic faith, one Sikh and one member of the Islamic faith, who are new members of parliament and are concerned about the new provisions and what to know if it is valid.

2. The state of VIC has passed the Citizens Protection Act which allows public protests of matters of public interest provided thee citizens comply with the obligations imposed by the law or directions made by or on behalf of the Chief Commissioner of Police.

A protest meeting is being held in front of Vic’s Parliament house regarding the state’s railway reforms and the Chief commissioner has directed that it be ended prior to mid-day to avoid traffic confusions that might arise due to other members of the public travelling to a large sporting event. Your client, Thomas Jefferson Bloggs believes that the real purpose is to minimise media attention and he seeks your view as the whether he can challenge this action as a breach of the implied freedom.

3. You act for Pyro Maniac who has been prosecuted under the Environment Protection Act 1997 (ACT) for burning an Aus Flag made of eucalyptus leaves in the foyer of Parliament House. Pyro burnt the flag as part of a protest regarding the actions of the government and wants your advice as to whether his actions would be protected by the protection of political communication.

Would your answer change if Pyro was participating in a smoking ceremony?

4. You act for Rupert Fox, newspaper owner and donor to political parties. He has come to you to challenge the Election Funding Act 2018 (Cth) which prevents newspaper owners donating to political parties. Does the prohibition infringe upon the implied freedom of political communications?

5. In 2008 PM Kevin Rudd declared that Bill Henson’s photographic exhibition, including pictures of naked children, was absolutely revolting and had no artistic merit. Imagine, in response, that Bill Henson enters a portrait in the bald Archives which depicts Kevin Rudd as:

  • A control freak with no capacity to delegate
  • Indecisive
  • Having no artistic discernment
  • A potty mouth
  • Incompetent

The minister for Arts asks the AFP to raid the exhibition and seize the painting under sedition laws. Does this infringe the freedom of political communication?

Sample Answer

Implied Freedom Of Political Communication
Q1. The government of Australia has passed the Government Neatness Act which ensures that all the members of the Parliament have standardized cuts with no coverings on head and mustaches or beards. The issue here is that the three religious people who are Judith, Islamic and Sikh in Parliament people have problems in following these provisions. Due to their culture, beliefs, and religion, they are required to wear coverings on their head and have mustache and beards. This can be regarded as against the religious rights of people as the government cannot interfere with the religious beliefs of people. Being a secular country, the three individuals have the right to approach the court to challenge the constitutionality of this act.

The Constitution of 1901 provides that the Commonwealth Government cannot interfere with the religions of the individuals residing in the state. Section 116 of the Australian Constitution prohibits the Commonwealth government to pass any law that prevents the free exercise of any religion. However, religious freedom given in Section 116 is not absolute which indicates that laws can be passed for maintaining a balance between religion and rights. In case of Kruger v Commonwealth (1997) 190 CLR 1, 125, the high court has ensured that law needs to ensure that individuals can execute their rights regarding religion. The High Court has unanimously held that there requires no action regarding breach of constitutional rights. It further states that the government should not make any rules for imposing any religious observance or preventing the free exercise of religion. It ensures that law can be framed for promoting civil unity and achieving a legitimate purpose.

Q2. The issue here is related to protest meeting that is held in front of Parliament House regarding railway reforms which can hamper the traffic movement and add confusions as large number of people are traveling to a sporting event. The protests have been held against the Citizen Protection Act which ensures that protests can be held regarding public interest provided the citizens abide by law or directions given by the police.  However, as per Bloggs, the real intention between these directions of the ending of protests in midday is for minimizing the attention of media. This Court has held that Section 7, 64, 128 and 24 states that the individuals have the freedom of discussing government and political matters.  In the case of Coleman v Power (2004) 220 CLR 1, the court has decided that Section 7(1) of Vagrancy Act is not valid for its infringement of the implied freedom regarding communication in political terms. If this section is invalid, then the court has asked to consider those provisions under which the rarest of the appellant should be kept aside. It implies that individuals can seek for implied freedom in case of communicating political matters if the individuals feel that political rights have been infringed upon. This implies that people have rights to protests against government decisions in a non-violent and peaceful manner.

In the case of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the court has held that it is impossible to prevent the application of implied freedom in respect to political communication in Commonwealth matters. The High Court has stated that defense regarding qualified privileged is compatible regarding communication in political matters. It has found that ABC has defamed Lange on the pretext of giving false information. Political communication implies that free speech of individuals is balanced with the reputation of public protest regarding Commonwealth matters. This implies that people have the right to organize a non-violent and peaceful protest against railway reforms. It states that the law is required to conform to the freedom in respect to political communication that is an indispensable system of Commonwealth Government. In the case of Australian Capital Television Pty Ltd and New South Wales v Commonwealth [1992] HCA 45, the High Court has found that laws are invalid if they contravene implied freedom regarding political communication in Australia. It has been found by the court that the right of political communication is required for the representative system in Australia. This shows that Bloggs has the right to challenge this action as the breach of his implied freedom in respect to the political communication.  

Q3. The issue here is Pyro Maniac has been prosecuted under Environment Protection Act 1997 for burning the flag as a protest against the governmental actions. He has burnt the flag in Foyer of the Parliament House as a mark of his protest. The Environment Protection Act 1997 provides conservation, rehabilitation, and protection for enhancing the environment. Section 3 D (1) of this act ensures that individuals need to have a shared responsibility towards the environment which implies understanding environmental needs and is concerned with the protection of the environment. Section 108 (1) (a) ensures that an authorized officer has the right to detain or arrest any individual provided that it has been proved that the individual has violated the terms and guidelines in the act. In this case, the authorized officer has the right to arrest Maniac as he has violated the act by burning the flag which is made of the eucalyptus tree. Tearing of flag shows that the individual is disrespectful towards the nation and is not concerned with its environment. The implied freedom regarding political communication ensures that people have the right to protest against the governmental actions provided that they do not harm any religious sentiments or threats to the security of the nation.

Section 128 (1) (a) ensures that a Supreme Court can order of violation of environmental laws if it is convinced that the concerned individual has violated the guidelines or laws laid in the act. This implies that if it has been proved that Maniac has done wrong by burning the flag, then he will not be entitled to appeal in respect of implied freedom for political communication. In the case of Nationwide News Pty Ltd v Wills [1992] HCA 46, the court has stated that the authority has no power to curb the freedom of expression of people. Freedom in respect to expression ensures that the people have the right to question or criticize the governmental laws and actions. An alternative communication is necessary for understanding that the words have been calculated for bringing members into disrepute regarding exercising powers. It implies that justice is not done on arbitrary power rather than on provisions of the Constitution. It prevents the government from making arbitrary laws or makes any laws that prevent the implementation of human rights. Freedom of expression has been found to be critical for a representative country like Australia so the government cannot make any arrests in case of protests provided that they do not threaten the security or law of the country. In this case, Maniac has burned the eucalyptus flag which is against the environmental laws though it is done as a result of the protest. Individuals have the right to protest peacefully and organize meetings and processions without harming the internal order or stability.

Q4. The issue here is related to challenging of Election Funding Act 2018 that prohibits the owners of the newspapers to donate to political parties. As per Section 46 of the Election Funding Act 2018, it is unlawful for an individual to donate funds to political parties if that individual is not enrolled in local government or federal elections. Section 47 (1) (a) ensures that it is regarded as not lawful for an individual to make contributions indirectly to political parties other than funds. Section 48 (1) states that it is unlawful for an individual, candidate or a party to make political donations to candidates or group of individuals who have not been backed by any political party. This shows that Fox has the right to challenge the Election Funding Act. As per the guidelines of this act, any individuals can donate funds to political parties provided they are parties prescribed by law.

In the case of Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, it has been raised whether freedom of publication is enhanced in the implied freedom in respect to communication in political terms. It has been stated that the freedom regarding political communication is laid in the Constitution that can help the individuals give their opinions regarding political and governmental matters. The court has stated that the implied freedom regarding political communication is just not limited to political discussions as the individuals also have the right to participate actively whether through protest or by giving funds. Implied freedom regarding political communication implies that individuals have the right to communicate problems regarding governmental actions through discussions or any type of public protest. In the case of McCloy v New South Wales [2015] HCA 34, it has been stated that restrictions in respect to funds that political parties have along with the candidates for meeting the costs regarding political communication burdens freedom as the candidate or the party will require to fill up that shortfall. In this case, Division 4A regarding Part 6 of Election Funding, Expenditure and Disclosures Act 1981 is invalid in case it burdens implied foredoom in respect to the political and governmental communication. It further stated that the plaintiffs are responsible for paying the costs of the special cases. In the case of Fox being prohibited to donate funds for the political parties, the shortage of funds will have to bear by the party. In this case, Fox has been prohibited to donate funds to political rights which are against his rights of participating in the political communication. He has the right to challenge this act provided he gives funds to genuine political parties.  

Q5. In this context, the issue is related to raining to the exhibition of Bill Henson as he has done an exhibition of naked children and shown Kevin Rudd in a bad light. Due to this, the minister of Arts has issued directions to AFP to seize the paintings under the sedition laws of Australia. As per Section 24 of the Crimes Act 1914, the intention of sedition can be defined as bringing contempt or hatred to the Sovereign, exciting dissatisfaction against the Constitution or the Government, exciting the subjects of Her Majesty and promoting hostility and ill feelings among various classes.  This shows that the individuals of the Commonwealth territory are prohibited to act in a way that can hurt the government or the laws of the territory. In the case of Stephens v West Australian Newspapers (1994) 182 CLR 211, it has been stated that the owners of the newspapers have the right to publish anything that they may find it required to be communicated to common people. In this case, the plaintiffs are of the view that the three articles that have been published in the newspaper have been defamatory. However, it has been stated that people have the right to exercise their frère opinion regarding political and governmental matters.  It has been argued that they have the right to publish the news regarding voting and elections. The court has held that freedom regarding political communication regarding political matters which have been extended in the Constitution is extended to the performance, choice, and conduct of office members in the State legislature. This shows that the individuals have the right to give true information regarding the political affairs of the state.

However, state curbing the rights of individuals and arresting them on the pretext of hurting sentiments of political figures amount to the curbing the freedom of individuals to express through art. The state does not have the right to curb the freedom regarding expression and art as art helps in giving hope to individuals. In this case, seizure of the paintings of Benson implies that the government is curbing the intellectual rights of Benson which has been expressed through his art of photography. Thus, implied freedom regarding political communication is violated in this context as Benson is prohibited to give his political views and show the condition of children.

References
Australian Capital Television Pty Ltd and New South Wales v Commonwealth [1992] HCA 45

Buckingham, Jake. "Current trends surrounding the constitutional freedom of political communication." (2016) 4(1) Bond University Student Law Review 2.

Coleman v Power (2004) 220 CLR 1

Crimes Act 1914 https://www.legislation.gov.au/Details/C2017C00297

Election Funding Act 2018 https://legislation.nsw.gov.au/acts/2018-20.pdf

Environment Protection Act 1997 https://www.legislation.act.gov.au/a/1997-92/current/pdf/1997-92.pdf

Gray, Anthony. "Religious Freedom and Section 116 of the Australian Constitution: Would a Banning of the Hijab or Burqa Be Constitutionally Valid?." (2011) In Forum on Public Policy Online, vol. 2011, no. 2. Oxford Round Table. 406 West Florida Avenue, Urbana, IL 61801.

Griffiths, Leanne, ‘the implied freedom of political communication the state of the law post' (2015) https://www.austlii.edu.au/au/journals/JCULawRw/2005/5.txt/cgi-bin/download.cgi/download/au/journals/JCULRev/2005/5.pdf

Kruger v Commonwealth (1997) 190 CLR 1, 125

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

McCloy v New South Wales [2015] HCA 34

Nationwide News Pty Ltd v Wills [1992] HCA 46

Reynolds, Daniel. " implied freedom of political observation in the Australian constitution." (2018) 42(1) Melbourne University Law Review.

Stephens’s v West Australian Newspapers (1994) 182 CLR 211

Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104

 

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