CONTENTS I Introduction II Constitutional Implications from Representative Democracy III The Rise and Fall of the Implied Freedom of Association A Kruger v Commonwealth B Mulholland v Australian Electoral Commission C Wainohu v New South Wales D Tajjour v New South Wales E Conclusion on the Freedom of Association IV The Implied Freedom of Political Observation A The Argument B Support in Authority and Commentary V Counterarguments A Artificiality B Expanding the Implied Freedom of Political Communication C A Suitable Vehicle VI Conclusion I INTRODUCTION
In 1992, the High Court of Australia held that there exists an implied freedom of political communication ('the IFPC') which arises as a necessary incident of the system of representative democracy for which the Australian Constitution (the 'Constitution') provides. (1) This was a landmark event that prompted much academic speculation about whether representative democracy might require any other implications, such as freedom of assembly, freedom of movement, freedom of association and the right to vote. (2) In the decades since, the Court has recognised some further implications from representative democracy, (3) and rejected others. (4)
This paper makes the case for a new implication yet to be considered by any court: an implied freedom of political observation. 'Political observation' in this context means any use of the senses (sight, hearing, and so on) to perceive something, by means of which the observer may form a view on government or political matters. Like the IFPC, the rationale for the freedom would be to '[enable] the people to exercise a free and informed choice as electors'. (5)
The need for the new implication arises because the IFPC only protects the formation of views acquired second-hand (whether by communication between electors, between representatives and electors, or via the media). That is, the IFPC is premised upon the involvement of at least two people: the person imparting information, and the person receiving it. What the IFPC does not protect is the formation of views acquired first-hand, that is, through the individual observations of one person acting autonomously, without reference to the views of others.
This halfway protection would be justifiable if the Constitution impliedly protected communication itself. But it does not: communication is protected because it is a means by which electors may inform themselves about government and political matters and thereby exercise a free and informed choice at elections. The text and structure of the Constitution supply no reason to conclude that communicative means of acquiring that information should be protected, but non-communicative means should not. One possible explanation for the recognition of the former alone is the influence on Australian courts of American jurisprudence concerning the First Amendment, which expressly protects the freedom of speech. Yet while that jurisprudence is illuminating, its utility in the present constitutional context is attenuated by the circumstance that the relevant protection in Australia arises by way of implication rather than by express guarantee. (6)
Accepting that there is no reason why first-hand information should not be protected in the same way as second-hand information, two questions follow: what sort of conduct would an implied freedom of political observation cover, and what sort of laws would burden it?
As to the first question, experience teaches us that many people make up their minds about political matters, at least in part, not by discussing politics with friends or reading the news, but by going out into the world and arriving at opinions based on what they observe. As will be argued, that is an unexceptional and entirely legitimate way of forming political views. For example, controversies occasionally arise as to whether a particular building should be 'heritage listed' and preserved, or sold to developers and demolished. That is clearly a political issue. It is also clearly an issue on which views can be formed by going to see the building. It is a small further step to appreciate that a law that prevented people from going to see the building would, to that extent, impede their ability to form those views. As is more fully developed below, there are many other examples where political views will readily be formed by electors going to a particular place and observing what is there. Critically, the IFPC can provide no protection from government action that would inhibit the ability of electors to form views in this way, as no communication is involved.
The example just given reveals that the proposed implication has a corollary: freedom of movement, at least of a particular kind. What is necessary is the freedom for electors physically to go to public places, or other places of political significance, in order to observe whatever may be there. The implication proposed in this paper would justify a freedom of movement only in this limited sense, rather than at large. Just as the IFPC does not protect nonpolitical communication, (7) so too an implied freedom of political observation would not protect movement that does not conduce to the obtaining of information that could affect a person's choice in federal elections. (8)
As to the second question, a law will therefore burden the implied freedom of political observation if it impedes access to a place where information that could affect a person's choice in federal elections may be acquired. Possible examples of such laws are given in Part IV, but one needs to look only to modern history, where people of particular races or religions have been segregated and excluded from public places (as in South Africa during apartheid, and in Jewish ghettos in Nazi Germany) to see that the question is not purely theoretical.
The approach of this paper is as follows. Part II considers the High Court's jurisprudence on the IFPC to date and draws on it to identify a relevant consideration for the recognition of further implied freedoms arising from the constitutionally prescribed system of representative democracy. Part III analyses the line of authority culminating in the rejection of a free-standing 'implied freedom of political association', which is now understood to exist only as a corollary to the IFPC. The purpose of Part III is to explain the rationale for that line of authority and to extract from it a second criterion for the recognition of new implications from the system of representative democracy (9) and responsible government for which the Constitution provides. Part IV contains the argument proper for the implied freedom of political observation, and explains how it might operate in practice. Part V deals with possible counterarguments. Part VI provides a conclusion.
II CONSTITUTIONAL IMPLICATIONS FROM REPRESENTATIVE DEMOCRACY
My purpose in this Part is to do two things. First, I make the basic, and perhaps uncontroversial, point that the rationale for the existence of the IFPC is that it is necessary to enable people to exercise a free and informed choice as electors. Second, I consider the relevance of the question of necessity in deciding whether to accept or reject the existence of further proposed constitutional implications from representative democracy.
In Lange v Australian Broadcasting Corporation ('Lange'), (10) a unanimous High Court explained the rationale for the IFPC in the following terms:
[B]ecause the choice given by ss 7 and 24 must be a true choice with 'an opportunity to gain an appreciation of the available alternatives' ... legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election. 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 government matters which enables the people to exercise a free and informed choice as electors. (11) It may immediately be noticed that nowhere here, nor elsewhere in Lange, is the IFPC justified on the basis that political communication is important for its own sake. Rather, its importance lies in its ability to enable people to make a free and informed choice as electors. The IFPC is necessary to representative democracy because it facilitates the acquisition of relevant information upon which the free and informed choice of electors depends.
The Court in Lange affirmed this understanding by adopting McHugh J's statement in Stephens v West Australian Newspapers Ltd (12) that 'the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials'. (13) The Court proceeded to declare that 'each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia'. (14) It can be seen that the acquisition of politically relevant information is the end; communication the means.
This understanding of the rationale of the IFPC is also to be found in the foundational cases of Australian Capital Television Pty Ltd v Commonwealth ('ACTV') (15) and Nationwide News Pty Ltd v Wills ('Nationwide'). (16) In ACTV, Mason CJ said that the 'efficacy of representative government depends' upon political communication, because 'individual judgment' on a variety of 'issues turns upon free public discussion' of those issues. (17) His Honour footnoted the following quote from Lord Simon in Attorney-General v Times Newspapers Ltd:
People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such...