The Origins of Free Speech in Australian Constitutional Law

As early as 1912 Griffith CJ and Barton J recognised an implied right of access to government and to the seat of government: R v Smithers; Ex parte Benson (1912) 16 CLR 99. However it was not until the appointment of Murphy J to the High Court that there was real consideration of an implied right to political communication.

In a series of judgements starting with R v Director-General of Social Welfare (Vic); ex parte Henry (1975) 133 CLR 369 at 377, Murphy argued for the High Court to read into the Constitution certain implied rights. This case was concerned with the immigration power:

It would not be within the scope of the immigration power to permit migrants to be left in a state of guardianship indefinitely. On the face of it, a law to provide for guardianship of persons up to the age of thirty would be invalid.

The reason lies in the nature of our Constitution. It is a Constitution for a free society. It would not be Constitutionally permissible for the Parliament of Australia or any of the States to create or authorize slavery or serfdom. A law which (apart from justifications relating to infancy, unsoundness of mind, quarantine or administration of the criminal law) kept migrants or anyone else in a subordinate role inconsistent with the status of a free person, would be incompatible with a fundamental basis of our Constitution.

He made similar comments in General Practitioners Society v Commonwealth (1980) 145 CLR 532:

The Constitution makes no reference to different classes of society and its terms are inconsistent with slavery or serfdom or similar vestiges of a feudal society. It contains an implication of a free society which limits Parliament’s authority to impose civil conscription.

Murphy initially proposed an implied right to political communication in Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 where he stated at 88:

Elections of federal Parliament provided for in the Constitution require freedom of movement, speech and other communication, not only between the States, but in and between every part of the Commonwealth. The proper operation of the system of representative government requires the same freedom between elections.

Similar statements can be found in Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 581:

The Australian Constitution must be interpreted against a background of responsible government and democratic principles generally. Implications should be made which would promote such principles rather than those of arbitrary government and tyranny...

...The Constitution also contains implied guarantees of freedom of speech and other communications and freedom of movement not [582] only between the States and the States and the Territories but in and between every part of the Commonwealth. Such freedoms are fundamental to a democratic society. They are necessary for the proper operation of the system of representative government at the federal level. They are also necessary for the proper operation of the Constitutions of the States (which derive their authority from Ch V of the Constitution). They are a necessary corollary of the concept of the Commonwealth of Australia. The implication is not merely for the protection of individual freedom; it also serves a fundamental societal and public interest...

...The implied freedom of communication is not absolute but is subject to necessary regulation. The question arises whether the [584] statutory scheme under the Act conforms to the concept of necessary regulation...

The other judges in this case did not find it necessary to consider whether an implied right of political communication could be found in the Constitution however left the issue open for future determination. This was the case again in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10:

Whether the exercise of... legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law... is another question which we need not explore.

It was not until Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, that the majority of High Court judges established the existence of the implied right to political communication within the Australian Constitution (neither decision was unanimous).

In the next post I will go into more detail regarding the context and legal discussion in these decisions. It is somewhat astounding to think that a legally recognised right to political communication has only been in existence in this country for around 15 years. In terms of its Counstitutional foundation, Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (2^nd ed. 1998) state at page 1055 that whilst initially based on the general conception of representative government, in more recent times the freedom has been thought to stem directly from ss7 and 24 of the Australian Constitution. Respectively these sections provide that the Senate and the House of Representatives shall be 'directly chosen by the people'.

From the time of its conception it can be seen that the right to political communication was never seen to be an absolute right. The extent of the exceptions that will be supported under this formulation provide interesting analysis when considering the suggestion that the expansion of copyright law has impacted on free speech, or more specifically from my perspective, the communication of protest music.

Reflecting on an earlier post concerning Michelle Shocked and how she sued her record label on the basis of the 13th Amendment - involuntary servitude - the use of the law in this way was of course a tactic to gain publicity and to force negotiations. Whilst Murphy J also found basis to argue against laws that impacted on the free status of a person or indirectly caused a form of slavery, this cannot be seen to extend, as a viable argument, to the private use of contact law and copyright law to create a form of cultural slavery. The law may not be unconstitutional but may well be unconscionable from an artists perspective. For the public in general such a claim would most certainly fail.