1. To speak publicly and protest about the issues on an informed and persuasive basis
2. To be publicly seen, especially on television, helping and collecting injured birds and protected species
3. Ensuring that the people of Victoria could form and exercise informed political judgements regarding the position of the government with respect to duck shooting.
He was charged with three summary offences of entering into or upon a permitted hunting area without a permit during prohibited times. Levy claimed that the law was invalid as it interfered with his right to political communication. The Victorian government argued, amongst other measures, that the Constitutional limitations placed on the Commonwealth did not apply to the States, that there was no freedom of political communication in the Victorian Constitution and that the regulations did not unreasonably have the purpose of restricting the implied right to political communication stemming from either the Commonwealth or Victorian Constitution. For the purposes of this discussion regard will be had to aspects of the judgements which assumed the implied right to be available to the defendant.
To begin with I will outline the reasoning of the court in this case before again looking to apply aspects of the judgements to the issue of copyright expansion.
Summary of Judgements
Brennan CJ made some interesting observations with respect to the type of conduct protected by the implied freedom, stating (at page 5):
Speech is the chief vehicle by which ideas about government and political are communicated. Hence it is natural to regard the freedom of communication about government and political implied in the constitution as a freedom of speech. But actions as well as words can communicate ideas. In the United States where “freedom of speech” is protected by the First Amendment of the Constitution, non-verbal activity which expresses ideas may be protected as a form of speech. Thus a “protest by silent and reproachful presence” or by a burning of the flag of the United States have been held to be protected by the First Amendment....
The freedom of discussion implied in the Constitution of the Commonwealth, unlike the subject of protection under the First Amendment of the United States Constitution, does not require consideration of the connotation of “speech” or of the conduct which might be thought to constitute a form of speech. The implication denies legislative or executive power to restrict the freedom of communication about the government or politics of the Commonwealth, whatever be the form of communication, unless the restriction is imposed to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose. In principle, therefore, non-verbal conduct which is capable of communicating an idea about the government or politics of the Commonwealth and which is intended to do so may be immune from legislative or executive restriction so far as that immunity is needed to preserve the system of representative and responsible government that the Constitution prescribes.
In recognising that political communication in Australia extends beyond speech to actions and expression, Brennan qualified the operation of the implied right by suggesting that a limitation may be placed on its availability to challenge a law where that law can be seen to be reasonably appropriate and adapted for a legitimate purpose. He discussed this further at page 6:
If the prohibition or regulation is reasonably appropriate and adapted to the protection of life or limb there can be no doubt as to its validity. A law which is appropriate and adapted to the fulfilment of that legitimate purpose is not invalidated by limitations of legislative power implied from the terms and structure of the Constitution merely because an opportunity to discuss matters of government or politics is thereby precluded...
He considered that the role of the court was not to determine whether another method could have been adopted to achieve the same purpose but rather that the role of the court was limited to determining whether the means that were adopted were reasonably appropriate and adapted to the fulfilment of that purpose. He concluded that the implied right to political communication was not unjustifiably impeded in these circumstances.
Dawson J also held that in these circumstances the regulations were necessary to provide for the safety of the general public and as such were reasonable despite the impact on the implied right to political communication. Indeed he questioned whether the right was in fact implied at all but rather a natural construct of central provisions to the Constitution.
Worth noting are his observations regarding right to political communication, quoting directly from Lange v Australian Broadcasting Corporation:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government... If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid...
He went on further in this regard at page 13:
Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all. Not only that, but some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system. Apart from regulation of the electoral process itself, elections must take place within the framework of an ordered society and regulation which is directed at producing and maintaining such a framework, will not be inconsistent with the free elections contemplated by the Constitution notwithstanding that it may incidentally affect freedom of communication. In other words, the freedom of communication which the Constitution protects against law as which would inhibit it is a freedom which is commensurate with reasonable regulation in the interests of an ordered society.
Toohey and Gummow JJ also adopted the same test from Lange v Australian Broadcasting Corporation in reaching the conclusion that the regulations were valid. With respect to the second part of the test which requires a determination of the purpose of the regulations, they paid attention to the details of Regulation 1 which stipulated the objectives of the regulation to be, ensuring “a greater degree of safety of persons in hunting areas during the open season for duck in 1994” and the making of “amendments concerning the times and dates for the open and close seasons for game duck”.
They acknowledged that political expression not merely speech came within the ambit of protection and in discussing the curtailment of that freedoms stated that whilst the attachment of a penalty is a significant matter when assessing validity, it is not the only factor to be considered. In concluding that the regulations were valid they held that there was no express prohibition on political expression, that any impact was likely to be minimal and that in the circumstances the impact on political communication was reasonable.
Gaudron J also held the regulations to be valid and whilst noting that the test varies in each case depending on the purpose of the law in question, if the direct purpose of the law is to restrict political communication, it is only valid where necessary for achieving an overriding public purpose. If the law is directed to another purpose, connected to a grant of legislative power within the Constitution, then restriction of the right to political communication is only permissible where it is reasonably appropriate and adapted to that purpose.
McHugh J also noted that the ambit of expression falling within the right is wide – at page 23:
For the purposes of the Constitution, freedom of communication is not limited to verbal utterances. Signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it ...
Moreover, the constitutional implication does more than protect rational argument and peaceful conduct that conveys political or government messages. It also protects false, unreasoned and emotional communications as well as true, reasoned and detached communications. To many people, appeals to emotions in political and government matters are deplorable or worse. That people should take this view is understandable, for history, ancient and modern is full of examples of the use of appeals to the emotions to achieve evil ends. However, the use of such appeals to achieve political and government goals has been so widespread for so long in Western history that such appeals to the emotion cannot be outside the protection of the constitutional implication.
In essence McHugh J applied the same test as stated in Lang v Australian Broadcasting Corporation. McHugh concluded, as the others, that there was an impact on the freedom of political communication but that in the circumstances the regulations were valid.
Completing the unanimous judgements in this case, Kirby J, in also concluding that the regulations in this instance were valid and that political communication in Australia extends beyond words, provided what may well be the clearest summary of the law in this area. He identified six central propositions to the formulation and application of the implied right to political communication (page 36 to 37):
1. The purpose of the freedom must be kept in mind. It is to contribute to protecting and reinforcing the system of representative government for which the text and the structure of the Constitution provide...
2. No one suggests that such freedoms are absolute...
3. A distinction has been drawn between laws which incidentally affect constitutionally protected freedom of communication and laws which specifically target communication on political and government matters as such...
4. In other cases where a law has been said to impinge upon constitutionally protected freedom of communication, various tests have been proposed for differentiating between inhibitions which are legally permissible and those which are not. Thus, it has been suggested that a law that is “appropriate and adapted” to the fulfilment of a “legitimate purpose” or “reasonably and appropriately adapted” to “secure some end within power” will survive a challenge although the freedom of communication on political and governmental matters is affected. Alternatively, the concept of proportionality has been invoked by the suggestion that the impugned law must not be “disproportionate” to the attainment of the competing public interest or that there must be a “proportionality between the restriction which the law imposes on the freedom of communication and the legitimate interest which the law is intended to serve”. The concept of proportionality as a guide to the limits of powers not themselves expressed in purposive terms has been criticised. Nevertheless, in my view it is a useful concept, including in the context of burdens upon constitutional freedoms, so long as it is realised that it describes a process of reasoning and does not provide a sure answer to its outcome. It is a concept of growing influence upon our law. It is no more question-begging than the phrase “appropriate and adapted”. It springs from a richer jurisprudential source. It is certainly less ungainly.
5. In a number of cases, it has been suggested that a law-maker will be accorded a “margin of appreciation” in the making of a law designed to achieve a governmental interest which has the affect of inhibiting to some degree communication concerning political and governmental matters... In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides? Such cases do exist. But in the nature of their source in Australian constitutional law they will be fewer than the multitude of First Amendment cases which have engaged the attention of the courts of the United States.
6. Whilst bearing in mind the foregoing discussion, the test to be applied is that recently stated in the unanimous opinion of the Court in Lange v Australian Broadcasting Corporation:
“First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the Constitution to the informed consent of the people... If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.”
No comments:
Post a Comment