CONS ESSAY SKELETON

Fremantle Council decided not to celebrate Australia Day on the 26^th of January and rather opted to celebrate on a more “culturally inclusive day,” Saturday the 28^th of February out of respect for indigenous Australians.

Assume that in response to this decision by the Fremantle City Council, the WA State Government announces that it is reducing its funding to the Council by $1M for 2017 to punish the Council for being “unaustralian”.

Fully advise the Fremantle City Council whether the WA State Government announcement breaches any implied freedom of political communication under the Commonwealth and Western Australian constitutions.

ISSUES:

Does the announcement to reduce funding by the WA Govt. breach freedom of implied communication under Commonwealth and/or WA Constitutions?
Is Fremantle Council’s decision and motive behind moving the date of their Australia Day celebration constitute as a “political discussion.”
Do the Fremantle Council have a constitutional case to restrict the WA Government’s legislative and executive power?
Does their protest and relocation of their Australia Day date for constitute as a “political discussion” or “discussion of a political matter” and thus is it on a political topic of critiquing the current State and Commonwealth’s views on the treatment of Indigenous Australians and their ongoing plight?
Does the WA Governments reduction in funding to the Fremantle Council constitute as a “Statute” or is simply a verbal communication.

THE TEST:

For a law to be inconsistent with the implied freedom of political communication it must first be shown that it impinges upon political discussion and secondly that it does not adequately serve, or is disproportionate in its impact upon political discussion in serving, some other legitimate purpose.
In Lange –v- ABC, the High Court established a two-limbed test to decide whether a law breaches the implied freedom of political communication:(1.) Does the law effectively burden political communication?(2.) Is the law appropriate and adapted to an end that is consistent with the system of representative and responsible government established by the constitution? (Does the law itself serve some “legitimate” purpose?)

THE ORIGINS OF THE IMLPIED FREEDOM:

The implied freedom of political communication was first explained by the High Court in Australian Capital Television v Commonwealth(ACTV case) (1992) and Nationwide News v Wills (1992). In those cases the court said a guarantee of freedom of expression in relation to public and political affairs must necessarily be implied from the provisions which the Constitution makes for a system of representative government; s 7 and s 24 of the Constitution each guarantee that Parliament be ‘chosen by the people’. Such a freedom is an essential element of representative government, it is necessarily implied in the prescription of that system within s 7 and s 24, amongst others.
The Western Australian Constitution has also been interpreted as implying a freedom on political communication.

OTHER CASE LAW:

Theophanous –v- Herald & Weekly Times Ltd (1994) 182 CLR 104:

For a law to be inconsistent with the implied freedom of political discussion it must first be shown that it impinges upon political discussion and secondly that it does not adequately serve, or is disproportionate in its impact upon political discussion in serving, some other legitimate purpose. It is obviously very difficult to determine exactly when speech falls within the ambit of political discussion.

“For present purposes, it is sufficient to say that ‘political discussion’ includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators.” (At 124)
“Political speech’ refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.” (At 124)

Nationwide News Pty Ltd –v- Willis (1992) 177 CLR 1:

Once it is recognised that a representative democracy is constitutionally 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 (Justice Brennan at 48- 9).
No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose ( Justice Brennan at 50).

Australian Capital Television Pty Ltd –v- the Commonwealth (1992) 177 CLR 106:

Only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest, which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information.(54)

There are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. To take one example, the Parliament provides funding for the State governments, Territory governments and local governing bodies and enterprises. That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern” Chief Justice Mason at 142.

Lange –v- Australian Broadcasting Corporation (1997) 189 CLR 520:

Set out a 2-stage test for testing the validity of laws thought to interfere with the freedom of implied political communication.(1.) Does the law effectively burden political communication?(2.) Is the law appropriate and adapted to an end that is consistent with the system of representative and responsible government established by the constitution? (Does the law itself serve some “legitimate” purpose?)
In Lange’scase the High Court stated (at 571) “the Constitution requires ‘the people’ to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government.”

THE “PROPORTIONALITY TEST”:

Unions NSW –v- New South Wales 252 CLR 530:

The implied freedom applies to restrictions by State as well as Commonwealth law and regarding State as well as Federal electoral matters.
The implied freedom is not absolute but extends only so far as is necessary to preserve the system of representative government instituted by the Constitution.

Coleman v Power

Shows that the types of communications protected under Langeare not tightly restricted to those concerning politicians, parliaments and elections. Communications about the effectiveness or otherwise of public servants and other instrumentalities of commonwealth, state and local governments may be protected. The case also shows that protected communications are not restricted to calm, rational discourse and may include insults.

APLA Ltd –v- Legal Services Commissioner (NSW) (2005) 224 CLR 322:

Gleeson CJ and Heydon J re-emphasised that the freedom was not a general freedom of communication of the kind protected by the United States Constitution.

The types of communication that might be within the scope of the freedom include

‘signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it’ : Levy v Victoria (1997) 189 CLR 579: Justice Brennan at 595; Justice McHugh at footmote 109; Chief Justice Brennan at 594; Justice Kirby at 638–41.

POSSIBLE “LEGITIMATE PURPOSE”:

To determine whether or not the reduction in funding to the Fremantle City Council serves a “legitimate purpose” we should look at previous case law to decide how “legitimate” a law must be in order to restrict or burden the implied freedom to political communication.
The 26^th is when Citizenship ceremonies take place all across Australia.
Was the WA Government necessarily attempting to restrict free speech and the discussion of political ideas… or was it simply trying to ensure that new arrives to Australia are able to feel included as all other new immigrants are made to feel at citizenship ceremonies across the country on the 26^th.

TEST IN MCCLOY V NSW (adapted from the Lange and Coleman cases)

The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:
1. Does the law effectively burden the freedom in its terms, operation or effect?

If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.

If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government[4]? This question reflects what is referred to in these reasons as “compatibility testing”.

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.

If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object[5]? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision[6];

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.