Constitutional Implications

Assoc Prof H P Lee, a Public Member of the Press Council, looks at some decisions of the High Court which have had an impact on the position of free speech in Australia.

The retirement of Sir Anthony Mason from the chief justiceship of the High Court of Australia occurs at a time when the Court is required to marshal its intellectual resources to consolidate the foundations for the further advancement of the rights of the Australian people. When the legacy of the Mason court is studied, the constitutional guarantee of freedom of speech will undoubtedly rank as one of the landmark features of that legacy. That feature is under strident attacks today.

The attacks on the High Court in relation to implied rights have been taken to extreme. These attacks have invoked images of a Parliament being emasculated by a power hungry judiciary. The judicial process of constitutional interpretation has been condemned as amounting to a usurpation of parliamentary supremacy. To put it crudely, the High Court is accused of "stealing" power from the people of Australia. Nothing is further from the truth.

The implied freedom of political communications established by the High Court in the Australian Capital Television case and the Nationwide case was not a freedom which was simply plucked from the air. A perusal of the individual judgments in those cases would indicate that the judges sought to place the implied freedom on logical foundations.

The case for an implied freedom of speech, in my view, is a very persuasive one. In the first place, it must be recognised that implications play a vital role in the interpretation of the Constitution.

Sir Owen Dixon, often regarded as the master of legalism, had to stress that of all instruments a constitution would be the last one in respect of which no implications could be made. The pouring of outrage by critics of the Court gives the impression to the public that reading implications in relation to the Constitution is a radical move which occurred overnight. The cognoscenti will agree that implications have been part and parcel of the constitutional landscape. Implications have been used to restrict the law-making capacity of the Parliaments.

In 1915 the High Court in the Wheat case invoked the separation of powers implication. This implication was further refined by the court in the famous 1956 decision of Boilermakers'. Thus legislation enacted by the Commonwealth Parliament which violates the separation of the judicial power doctrine will be invalidated by the court. The doctrine was implied by the court from the structure of the Constitution which allocates the different functions of government to different Chapters of the Constitution, an allocation modelled closely on the American Constitution. In the Boilermakers' case, the High Court said:

If you know nothing of the histoxry of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical inferences from Chaps I, II and III and the form and contents of ss 1, 61 and 71.

The separation of judicial power doctrine clearly diminishes the parliamentary sovereignty doctrine. This doctrine, just like the implied free speech doctrine, draws on "logical inferences".

The Commonwealth Parliament, in exercising its powers, cannot discriminate against the States or seek to impair their existence or functioning. This limitation is also brought into existence by the process of implication. The arena in which that limitation is applied is a confrontation between the Commonwealth, on one hand, and the States, on the other. The implied freedom of speech is part of that process of constitutional evolution (not revolution): it acts as a bulwark protecting the people of Australia from a Parliament which may seek to diminish their fundamental freedoms. How can it be that by guaranteeing the people of Australia their fundamental freedom of speech the High Court is acting against the interests of the people? The simplistic argument is used to say that parliamentarians being the representatives of the people will determine the scope of fundamental freedoms of the people: after all, if the people disagree they can always turf them out at the next election. Fundamental freedoms are so precious that their diminution even for a short span of time is unacceptable in a democracy, never mind having to wait till an election is called. The critics' argument is also based on the assumption that what the parliamentarians say is what the people really want: that can only be true if laws are made by citizen-initiated referendums.

The critics seek to uphold representative democracy. However, in a system imbued with the notion of the rule of law, representative democracy does not simply mean "crass majoritarianism". Effective representative democracies thrive on freedom of speech. Our Constitution enshrines representative democracy; a logical inference or implication is that free speech is fundamental to it. McHugh J, before his elevation to the High Court, had observed extracurially that judges have much to contribute to democracy. "The courts, as much as the legislatures, are in continuous contract with the concrete needs of the community".

H P LEE

see also
An interview with HP Lee
published in the February 1999 APC News.

[ return to top ]

Return to APC News 1995 Index

Documents with the icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.