Review of the Unlawful Assemblies and Processions Act 1958

Chapter 5 - Constitution and Implied Rights

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INTRODUCTION

5.1 The Commonwealth Constitution does not expressly provide any protection for a right of peaceful assembly, or any related rights. However, in the early 1990s, the High Court of Australia demonstrated an increased willingness to imply such rights from the text of the Constitution. More recently again, the Court has stepped back from such an expansive reading of the Constitution.

5.2 These developments are significant for several reasons. Firstly, because the creation of such rights by the highest court in Australia stands as an important example to all Australian jurisdictions. Second, the existence of such rights may have a direct impact on the Victorian Unlawful Assemblies and Processions Act 1958. If the Act were found to be inconsistent with a right implied from the Constitution, the Act would be invalid due to the operation of section 109 of the Constitution.

COMMONWEALTH CONSTITUTION

5.3 There is no comprehensive, constitutionally entrenched Bill of Rights in any Australian jurisdiction.[262] The Commonwealth Constitution entrenches only a few individual rights such as a right to trial, and freedom of religion. It does not expressly provide that Australians possess the freedom to discuss political matters, or the freedom to assemble.

5.4 However, sections 7 and 24 of the Constitution provide that the Senate and House of Representatives shall be composed of members "directly chosen by the people of the Commonwealth".[263] The Constitution thereby establishes a system of representative and responsible government. It may be argued that one of the indispensable incidents of such government is freedom of communication on matters of government and politics. This freedom arises because the ability of people to communicate information and ideas is an essential part in the process of making a true choice in an election.[264] This is essentially the position the High Court of Australia has adopted in the past decade.

IMPLIED FREEDOM OF COMMUNICATION

5.5 The High Court has recognised that the text and structure of the Constitution, including the system of responsible and representative government it creates, may give rise to a number of implied freedoms from governmental power. An implied freedom of speech in relation to political matters was recognised by a majority of the Court in 1992, extended in 1994, but wound back in 1997, due to the differently constituted Court.[265]

5.6 The first decision of the High Court in which a majority recognised an implied freedom of communication was Nationwide News Pty Ltd v Wills.[266] The case concerned the validity of a provision of Federal industrial relations legislation which made it an offence to use words "calculated" to bring a member of the Australian Industrial Relations Commission into disrepute. The defences which were ordinarily available to a person charged with contempt or accused of defamation were not available under the legislation. All members of the Court held that the provision was unconstitutional on the basis that it was not appropriate and adapted to achieving the purpose of section 51 (xxxv) of the Constitution (the conciliation and arbitration power).[267] However, their reasons for arriving at this conclusion differed.

5.7 Brennan, Deane, Toohey and Gaudron JJ based their reasoning on the proposition that the system of representative government prescribed by the Constitution gave rise to an implication that it is necessary to enable the discussion of political and governmental affairs.[268] Deane and Toohey JJ explained the implied freedom as follows:

    ...[T]he central thesis of the doctrine [of representative government] is that the powers belong to, and are derived from, the governed, that is to say, the people of the Commonwealth. The repositories of governmental power under the Constitution hold them as representatives of the people under a relationship, between representatives and represented, which is a continuing one. The doctrine presupposes an ability of represented and representatives to communicate 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.

    It follows from what has been said above that there is to be discerned in the doctrine of representative government which the Constitution incorporates an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth.[269]

5.8 In Australian Capital Television Pty Ltd v Commonwealth[270] a majority of the High Court confirmed the existence of the implied freedom of political communication, although they differed as to its nature and content.[271] In this case, a majority of the Court held that the Political Broadcasts and Political Disclosures Act 1991 (Cth), which banned radio and television advertising for Federal, State and local government elections, and for Federal referenda, contravened the newly found freedom of political communication.

5.9 Mason CJ described the freedom as follows:

    The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act... Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.[272]

5.10 The application of the implied freedom of communication was further explored in Theophanous v Herald & Weekly Times Ltd.[273] This case concerned a letter published in a Melbourne newspaper, criticising the views, performance and capacity of the plaintiff, as a member of the Federal Parliament. The MP sued the newspaper and letter writer for defamation. The defendants successfully argued that the publication of the letter was supported by an implied freedom of communication in respect of political matters. A majority of the Court - Mason CJ, Deane, Toohey and Gaudron JJ - recognised a constitutional defence to defamation, which appeared to accept that the implied freedom was a "personal right".

5.11 In summary, the majority held that there is implied in the Constitution a freedom to publish material discussing government and political matters, members of the Commonwealth Parliament (especially their performance as members of the Parliament or parliamentary committees), and the suitability of persons for office as members of the Parliament. Such publications would therefore not be actionable for defamation if the defendant was unaware of the falsity of the material published, was not reckless, and the publication was reasonable in the circumstances.[274]

5.12 The reasoning of the majority in Theophanous was applied in Stephens v West Australian Newspapers Ltd.[275] The cases discussed above, taken together, suggested a new High Court activism in the development of implied constitutional rights.[276]

LIMITS ON IMPLIED FREEDOM OF COMMUNICATION

5.13 The correctness of Theophanous and Stephens, in particular the reasoning on which the decisions were based, was questioned in several cases which came before the Court in 1996 and 1997. In these decisions, the High Court has confirmed that the Constitution merely prescribes a system of representative government which leaves a great deal of discretion to the Parliament to determine the form which that type of government might take.[277]

5.14 In McGinty v Western Australia[278], a number of voters challenged the validity of provisions of the West Australian Constitution and electoral laws which effectively provided rural voters with greater voting power than metropolitan voters. A majority of the differently constituted High Court rejected the argument that disparities in voting power were inconsistent with principles of representative democracy. Brennan CJ, Dawson, McHugh and Gummow JJ (Toohey and Gaudron JJ dissenting) held that neither the WA or the Commonwealth Constitution gave rise to an implication that the people of WA enjoyed a guarantee of "one vote – one value". McHugh J strongly criticised the development of implied freedoms from a doctrine of representative democracy:[279]

    I regard the reasoning in Nationwide News, Australian Capital Television, Theophanous and Stephens in so far as it invokes an implied principle of representative democracy as fundamentally wrong and as an alteration of the Constitution without the authority of the people...[280]

5.15 The High Court's restraint in the development and application of implied freedoms was also evident in Langer v Commonwealth.[281] Langer was charged with offences under the Electoral Act 1918 (Cth), for encouraging people to mark their preferences on ballot papers in a manner inconsistent with section 240 of the Act. A majority of the Court rejected Langer's argument that section 240 was inconsistent with the Constitution, on the basis that the words "chosen by the people" in section 24 of the Constitution required that voters must be free to indicate the candidates not chosen by them, and that this could only be done by filling in the ballot paper in a manner contrary to section 240. Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ (Dawson dissenting) found that section 240 did not infringe the implied freedom of communication because Langer remained free to criticise the system – but in doing so, he was not allowed to encourage people to disregard the system.[282]

5.16 The new caution of the High Court in developing implied freedoms from the representative system of government was confirmed in Lange v Australian Broadcasting Corporation.[283] In this case, the former Prime Minister of New Zealand brought proceedings in defamation against the ABC. The ABC relied on a number of defences, including the implied freedom of political communication. The High Court took the opportunity to reconsider the divergent views in prior cases on implied freedoms, and delivered a unanimous judgment to the following effect:

    Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively...

    That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or governmental matter which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power...

    However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government of the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that end.[284]

5.17 In summary, the High Court recognises a freedom of communication on political matters, implied from the system of responsible and representative government set out in the Constitution. However, the freedom is negative in nature, as it creates an area of immunity from legal control, rather than creating a positive or individual right. Further, the freedom may be restricted by legislation, provided such legislation is compatible with democracy and reasonable.

5.18 The new principle relating to the freedom of communication was applied by the High Court in Levy v Victoria.[285] In that case, an animal rights activist was charged under Victorian hunting season regulations which made it an offence for people who did not hold a valid game licence to enter permitted hunting areas during duck hunting season. The plaintiff challenged the validity of the regulations, arguing that to communicate his political message that duck shooting should be banned it was necessary for him to have access to hunting grounds to retrieve dead and wounded birds to show them to the media.[286]

5.19 The High Court applied the test set out in Lange, and unanimously held that the regulations were reasonably necessary to protect the safety of the public and participants, and the restriction on the type of protests that this entailed was reasonably capable of being seen as appropriate and adapted to this end. The regulations were, therefore, valid.[287]

RELEVANCE TO FREEDOM OF ASSEMBLY

5.20 The freedom of assembly is obviously closely related to the implied freedom of political communication. The most obvious exercises of the freedom of assembly, protests and demonstrations, are almost always motivated by a desire to communicate a political message, to other citizens and to politicians. Members of the High Court in Lange stated or assumed that nonverbal activity would also fall within the implied freedom of communication.[288] It is arguable, therefore, that the implied freedom of communication would protect assemblies and demonstrations intended to communicate a political message. Alternatively, the High Court could use the same reasoning to imply a freedom of assembly from the Constitution.

5.21 However, as noted in Lange and demonstrated by Levy, the freedom of communication is not absolute. The right may be restricted by legislation, Commonwealth or State, provided it meets the two-pronged test set out in Lange.

RELEVANCE TO VICTORIAN ACT

5.22 As noted in the introduction to this Chapter, where State legislation is inconsistent with Commonwealth legislation, section 109 of the Commonwealth Constitution renders the State legislation invalid to the extent of the inconsistency. It is therefore necessary to consider whether the Victorian Unlawful Assemblies and Processions Act 1958 (Vic) is inconsistent with the freedom of communication implied from the Constitution. In order to determine this, we must apply the two-step test set out in Lange.

5.23 The issues for determination are therefore whether the Victorian Act: (a) effectively burdens the freedom of communication about political matters; and (b) if so, whether the law is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of responsible and representative government.

5.24 Sections 3 and 4 of the Victorian Act prohibit assemblies and processions in the vicinity of Parliament House when either House is sitting. These provisions certainly appear to limit the freedom of communication about political matters, as they restrict the ability of citizens to communicate their opinions on political matters to their elected representatives. It is unlikely that a court would consider these sections to be reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of responsible and representative government. The provisions were introduced in the mid-1800's to protect the deliberations of Parliament from interruption by rowdy demonstrators.[289] This is, of course, a legitimate purpose. However, given the very different community expectations today in respect of the right to protests, a court would probably find that a blanket prohibition on assemblies and demonstrations disproportionate to the end to be achieved, and incompatible with democratic principles. If so, the Victorian Act would be invalid to the extent of the inconsistency. The same reasoning would apply by analogy to section 10.[290]

5.25 However, legislation providing for a voluntary system of notification or permits for the holding of assemblies and processions, such as the Queensland Peaceful Assembly Act 1992 (Qld), would be valid under the Lange test. Such legislation does not prohibit assemblies and processions, but merely seeks to regulate them in the equally valid interests of public order.[291]

5.26 The Committee notes the possible invalidity of key provisions of the Victorian Act, and considers that this is yet another reason in favour of the repeal of such archaic legislation.


Footnotes

[262]

The Laws of Australia, 19.6 Constitutional Guarantees of Rights, [1].

[263]

ibid., [4].

[264]

ibid., [5].

[265]

P Keyzer, Constitutional Law, Butterworths, Chatswood, NSW, 1998, p 266.

[266]

(1992) 177 CLR 1.

[267]

Keyzer, p 266.

[268]

id.

[269]

(1992) 177 CLR 1, at 72-3.

[270]

(1992) 177 CLR 106.

[271]

Keyzer, p 267.

[272]

(1992) 177 CLR 106, at 138.

[273]

(1994) 182 CLR 104.

[274]

Keyzer, pp 267-8.

[275]

(1994) 182 CLR 104.

[276]

Keyzer, p 268.

[277]

id.

[278]

(1996) 186 CLR 140.

[279]

Keyzer, pp 268-9.

[280]

(1996) 186 CLR 140.

[281]

(1996) 186 CLR 302.

[282]

Keyzer, pp 269-70.

[283]

(1997) 145 ALR 96.

[284]

(1997) 145 ALR 96, at 112.

[285]

(1997) 146 ALR 248.

[286]

Keyzer, p 273.

[287]

id.

[288]

id.

[289]

See Chapter 3 for the historical background to the Act.

[290]

See Chapter 3 for details of section 10.

[291]

See Chapter 4 for a discussion of the legislation of other Australian jurisdictions.


Scrutiny of Acts and Regulations Committee
© Parliament of Victoria