Academic journal article University of Queensland Law Journal

'Insult and Emotion, Calumny and Invective': Twenty Years of Freedom of Political Communication

Academic journal article University of Queensland Law Journal

'Insult and Emotion, Calumny and Invective': Twenty Years of Freedom of Political Communication

Article excerpt

Freedom of communication ... is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision. (1)

I INTRODUCTION

This sentence, extracted from a judgment of Chief Justice Mason, neatly summarises the reasoning of a majority of judges in the High Court's landmark judgments Australian Capital Television v Commonwealth (2) and Nationwide News v Wills (3) extending constitutional protection to communications about political matters. As is well known, the judgments were greeted with acclaim as well as a storm of controversy.

The 'freedom of political communication' decisions were regarded as something akin to a revolution. In the almost twenty-years since, two things are widely acknowledged. First, it is widely perceived that no revolution in Australian constitutional law has occurred. We have seen neither much more by way of development of constitutional rights by implication from representative government and progress towards a rights-oriented constitutional law has been slow and halting.

Second, the fate of the freedom of political communication exemplifies this trend. Though in Lange v Australian Capital Television (4) and Levy v Victoria (5) the High Court declined an invitation to overrule major decisions in the area, (6) at least since 1997, it has been rather cautious with the application of the doctrine. Since the foundational cases in 1992, both of which rendered Commonwealth laws invalid, only one federal law, one state law and one aspect of the common law, have been subjected to the requirements of the doctrine. (7) To put the point more precisely, the freedom of political communication is weak across two axes: it covers only a narrow category of expression (8) and it provides relatively weak protection for that expression.

While I do not as a general matter dispute this claim, (9) this article will strike a different note. Rather than dwelling on the weaknesses of the doctrine I will draw attention to a strand of reasoning in the High Court's decisions on freedom of political communication that stands in marked contrast to the general trend.

A consistent observation in the High Court's decisions in this area is that Australian political debate is properly considered to be unruly and raucous and may involve unpleasantness and insult. Moreover, it is apparent at least since Coleman v Power (10) that the law has no legitimate role in 'civilising' public debate. This conception of public discourse will naturally lend some protection to protest as well as conscientious public discussion, to activists, provocateurs and radicals as well as respected commentators and mainstream ideas.

In the first Part of this article, I will elaborate on this strand of reasoning and consider its significance for the freedom of political communication. The conception of public debate that the High Court appears to adopt in Coleman--a conception that accepts robust and unpleasant forms of political expression and is rather dismissive of the value of civility--provides the clearest understanding yet of the substantive values that underscore the freedom of political communication. As I have noted previously, moreover, this 'anti-civility' stance has some surprising affinities with aspects of the law of the First Amendment. (11)

Despite the contribution of Coleman to our understanding of the freedom of political communication, much remains unclear about the values that underscore the freedom and in particular, its apparently 'anti-civility' stance. In the second Part of this article I will consider, what those values might be. My starting point, argued elsewhere and revisited briefly here, (12) is that the Constitution (and specifically the method of interpretation ostensibly employed by the Court) provides few answers. Given that the Court must draw on values not derived from the 'text and structure' of the Constitution, I will consider other kinds of arguments that might guide the Court. …

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