Freedom of Speech and Australian Political Culture

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The 1992 judgments (1) constituted a high watermark of recognition of freedom of speech in Australian constitutional and political history. Given the absence of an express constitutional, or federal statutory, protection of free speech they were symbolically important. Whether or not the judgments, and subsequent iterations of the doctrine, (2) ushered in a new era for free speech protection is a discrete question, and one which is not the topic of this paper. However, as a moment when a majority of the highest court in the land spoke the language of freedom of political speech for the first time, they remain remarkable.

After the judgments in the 1992 foundational implied political communication cases were announced, the public reaction was considerable. Criticism was directed, perhaps predictably, at the High Court's utilisation of an implied jurisprudence to override the legislature. One commentator, for example, described the High Court's move 'into the interpretation of matters which are not necessarily spelled out in the Constitution ... [as] extremely dangerous'. (3) The judgments also stirred considerable debate in the national parliament, during which then Labor Senator Chris Schacht criticised unelected judges for 'relying on an implied power' to 'frustrate the will of Parliament'. (4) The High Court was described as expressing a 'clear determination to take a more active role in Australian public policy'. (5)

A further line of commentary mooted the possibility of the judgment leading to a line of reasoning that might produce a de facto bill of rights. Speaking at a conference in Darwin in October 1992, shortly after the decisions were handed down, Toohey J suggested that an application of an implied jurisprudence might be capable of interpreting the rule of law in a way that would protect a range of rights. He suggested that:

   the courts should ... conclude that where the people of Australia,
   in adopting a constitution, conferred power to legislate upon a
   Commonwealth government, it is to be presumed they did not intend
   that those grants of power extend to the invasion of fundamental
   ... liberties ... If such an approach were adopted, the courts
   would, over time, articulate the content on the limits of power
   arising from fundamental common law liberties. (6)

He suggested that the kinds of liberties likely to be so protected might include free speech, freedom of assembly, freedom from arbitrary arrest, and freedom from search and seizure without the issue of an evidence-based warrant. The federal minister for Justice, Senator Michael Tate, reacted strongly to the implications of Toohey J's speech, contradicting his claim that the common law was the historical basis upon which enhanced rights protection had developed, and that the common law could therefore now be seen as the basis for expanded rights protection by the courts. Tate argued that the common law 'has rarely protected individual human rights as distinct from the rights of the property-owning, contract-making classes'. (7) However, others concurred with Toohey. J. Senator Bolkus was quoted in the media as saying that the judgments were 'a first step towards entrenching in our legal system respect for rights'. (8)

A third line of commentary was braver, making expansive predictions concerning the fate of freedom of speech in Australia following the judgments. Such commentary included the prediction by well-respected journalist Margo Kingston that 'it now appears that if the Coalition wins power, it will have to live with far stronger restraints on legislative action by the High Court than it ever thought possible'. (9) Prediction in politics is never an easy game to play, and Kingston was not to know that the Coalition would subsequently win government in five successive elections between 1996 and 2004, and that in the last of those it would win control of both houses of parliament. …