The first judgement in this case to consider the notion of an implied right to political communication was that of Brennan J. In characterising the operation of s299(1)(d)(ii), Brennan held that the paragraph was sufficiently connected to the main purpose of the grant of legislative power under s51(xxxv) of the Constitution. However he then noted that any express power within this instrument is subject to the operation of the instrument itself, from which implications may be drawn limiting a grant of legislative power. These implications are not, however, absolute, with boundaries to their application. With respect to human rights in general, Brennan stated:
[12] A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms... but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court’s opinion, should be preserved. A function of that kind may be conferred on a court exercising a jurisdiction to review judicially laws enacted under a Constitution containing a Bill of Rights, but our Constitution does not contain a Bill of Rights.
Brennan went on to note that there could be no challenge to an act of legislative power based on the notions of ‘peace order and good governance’ as this would open the floodgates of legislative review. Nonetheless the Australian Constitution does contain implied rights which can apply when reading the instrument in the context of the whole of law.
In this case the focus was on freedom of political discussion. Brennan held that to sustain a representative democracy, the freedom to discuss political and economic maters is essential. Referring to the European Court of Human Rights in The Observer and the Guardian v United Kingdom (1991) 14 EHRR 153 at 178:
[18] ...[I]t would be a parody of democracy to confer on the people that power to choose their Parliament but to deny the freedom of public discussion from which the people drive their political judgements...
He went on:
[19] ...Once it is recognized that a representative democracy is prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains...
He stated that no right to political communication arises at common law, nor does an implied Constitutional right restrict the operation of the common law.
He then went on to formulate the nature of the implied right:
[21] ... A freedom of the kind postulated leaves open to debate the extent to which that freedom can be trenched upon in order to protect other interests which are protected in a legal system modelled on Westminster, for example, the interests of justice, personal reputation or the community’s sense of decency. The balancing of the protection of other interest against the freedom to discuss governments and political matters is, under our Constitution a matter for the Parliament to determine and the Courts to supervise. I would state the governing implication in these terms: the Constitution prohibits any legislative or executive infringement of the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgements required for the exercise of their constitutional functions.
He then went on to consider the limits of the implied right further:
[22]... In considering the extent to which the freedom of discussion can be curtailed in protection of another interest, the material factors include the practicability of protection by a less severe curtailment of the freedom and the extent to which the protection of the other interest itself enhances the ability of the Australian people to enjoy their democratic rights and privileges. The circumstances which may affect the extent to which the freedom can be curtailed include the exigencies of defence or national security and the contemporary risk to other interests which are in need of protection.
In concluding that in this instance the paragraph of the Industrial Relations Act went beyond what was necessary, Brennan stated that the role of the High Court in disputes such as this was to determine whether the balance struck by Parliament was within the range of legitimate legislative choice.
In seeking to apply to the reasoning of Brennan’s judgement to the expansion of copyright law, questions that arise include:
- Do the copyright amendments protect legitimate interests?
- Does the protection of those interests substantially impair the capacity of, or opportunity for, the Australian people to form political judgements for their Constitutional purposes?
- Are there more practical ways of protecting the interests of copyright holders which impact to a lesser degree on the freedom of political communication?
- To what extent does current copyright law enhance the ability of Australians to enjoy their democratic rights and privileges?
- Is there a contemporary risk to the interests of copyright holders relevant in determining their need for protection?
Deane and Toohey JJ similarly held there to be an implied right to political communication. They failed to specifically conclude whether s299(1)(d)(ii) of the Industrial Relations Act was supported by s51(xxxv) or s51(xxxix) finding such an inclusions irrelevant given the operation and application of the implied right to political communication.
They held that there are there main doctrines of government which underlie the Constitution:
- The doctrine proscribing a Federal system of government
- The doctrine of the separation of powers
- The doctrine of representative government
[18] The people of the Commonwealth would be unable to responsibly discharge and exercise the powers of government control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election or referendum involves communication. An ability to vote intelligently can only exist if the identity of the candidates for election or the content of a proposed law submitted for the decision of the people at a referendum can be communicated to the voter. The ability to cast a fully informed vote in an election of the members of the Parliament depends on the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it....The doctrine presupposes an ability of represented and representative to communication information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole, to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.
According to Deane and Toohey JJ the implied freedom of political communication operates on two levels – between the people and their representatives, and between the people themselves. However the right extends only so far as to prohibit burdensome legislation and interference rather than as a positive right with a broad application. In this instance it was applied to strike down the legislation but their Honours also noted circumstances where exceptions may arise.
The first of these relates to examples where the overall availability of communication services necessarily restricts some instances of communication (Miller v TCN Channel Nine Pty Ltd [1986] HCA 60 - this case concerned the governments discretion to prohibit the establishment and maintenance of a station for transmission or receipt of wireless telegraphy messages); and the second, where restrictions on communication are upheld in order to protect legitimate interests such as allowing individuals to live peacefully and with dignity. They note in conclusion, that the nature of the particular legislative power or the express words used within the grant of legislative power in the Constitution will determine whether the implied right to political communication should be modified in other cases.
Deane and Toohey JJ indicate that in the course of providing the means for political communication, there may be instances where some derogation from the implied right may be justified. This raises an interesting point in the application of the law to the issue of copyright expansion. It has often been the claim that copyright law itself is designed to create incentives for creators by supporting an economic basis for their work. Some might seek to extrapolate this to an argument suggesting the restriction in access to political songs is justifiable in exchange for the wider range of communication that copyright supports. On the other hand, it may be suggested that as there is no positive right to freedom of communication in general in Australia, the inherent detraction in political content in songs and their effectiveness, that arises from the expansion of copyright law, can not be justified.
In a short judgement indicating support for the reasoning of McHugh J and Mason CJ; but accepting the validity of the paragraph of the legislation prior to determining its invalidity on the basis of the implied right to political communication, Gaudron J considered the purpose of the law to be an important factor:
[8] ...freedom to discuss matters pertaining to government institutions and agencies may be curtailed by a law under s51, but only if its purpose is not to impair freedom, but to secure some end within power in a manner which, having regard to the general law as it has developed in relation to the written and spoken word, is reasonably and appropriately adapted to that end.
When seeking to apply Gaudron J’s reasoning from this case to the issue of copyright expansion it appears difficult, firstly, to apply a purposive reasoning to a grant of legislative power that is essentially unfettered. In the event that a purpose could be established in another way, perhaps through evidence of copyrights historical nature, there becomes the secondary issue of whether such expansion could fairly be said to have the purpose of impairing freedom. One argument could of course suggest that merely stating the purpose as being one of providing incentives to create whilst actually producing a limitation to freedom could suggest the law is not reasonably appropriate and adapted. The converse argument would be that the purpose is clearly not to impair communication but to enhance it.
There are three further questions which I have identified which could also be raised in applying the implied right of political communication to the impact of copyright law expansion on political music.
The first is whether there is scope to separate different forms of expression. The fundamental point to consider is what actually makes up musical expression. Lyrics are protected at law as a literary work. With this in mind there are clear hurdles to overcome in the suggestion that music could be considered distinctly from other forms of expression. Whilst the impact on the availability of political music (at least to me) is apparent, it may be that in considering the whole of the operation of copyright law that there is a less obvious impact from copyright expansion. Given the chance I would argue against this but if it were to turn on a question of evidence this may be more problematic to establish. For example, term extension may be easier to establish in a quantifiable way than, say, the impact of DRM.
The second question appears more easy to resolve. In the example of copyright expansion, there is the additional complication of having private parties utilise the law to (arguably) inhibit the communication about public affairs. I would argue that this is an interesting difference between the facts of Nationwide News where the party seeking to prevent political communication was the Commonwealth. Nonetheless, the question arising in cases concerning legislative validity is the basis on which the law is made regardless of the party that exercises the authority that it confers.
The third and final issue that I seek to raise at this time is the question about whether the law that is sought to be struck down must expressly deny political communication or whether it is sufficient that this occurs by operation. In Nationwide News the paragraph under consideration expressly sought to prevent communication but in contrast, copyright expansion does this by its cumulative effect and without specific terms stating this objective.
In conclusion, it appears that there are some interesting arguments that could be made to challenge the validity of copyright expansion in Australia based on the reasoning of the judges in this case. But whilst some aspects of the decisions lend themselves to application to the copyright issues, others clearly detract from it. As the first decision to recognise the implied freedom of political communication, this was an important case. What should always be remembered is that the High Court, unlike other courts in the hierarchy, has the ability to modify and adapt the law. As will be seen in the cases that followed this, the law relating to the implied right to political communication has not been static and nor should it ever be considered to be in a final state.
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