Governments argue for narrow interpretation of Lange freedom of communication principles

In the recent High Court decision in Hogan v Hinch [2007 2011] HCA 4 our rather thin right to freedom of political communication received an airing, with the Commonwealth and the states putting some views about the interpretation of the Lange principles.The case concerned Victorian court suppression orders and whether the act under which they were issued contravened the implied right to freedom of political communication as enunciated in Lange. The Court unanimously rejected all grounds relied upon by Hinch.

Those involved more closely than me in free speech issues may have been aware of argument that the Lange freedoms were potentially limited to communications concerning Commonwealth politics or government. (Although this 1998 article by Professor Sally Walker, now I think at Deakin University, drew this from the Lange decision: "the High Court re-affirmed that not only federal legislation, but also State and Territory legislation and the common law must conform to the freedom of political communication which is an "indispensable incident" of the system of government created by the federal Constitution.") 

In any event I was surprised to find that the Commonwealth (an intervener) argued in the Hinch case for the limitation of Lange freedoms to communications concerning Commonwealth politics or government. And that NSW and Queensland (all the states also intervened) contended any exercise of executive or judicial authority under the Victorian act "was well removed from any 'federal issue' and thus from the scope of the Lange implication."

Beyond surprise about the potential significant limitations on an already tightly drawn right to freedom of communication came relief to find that Chief Justice French rejected the Commonwealth submission, concluding [49]:

"The range of matters that may be characterised as "governmental and political matters" for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government."

By implication the Chief Justice did not accept the NSW and Queensland argument. In their joint judgment, Justices Gummow, Heydon, Crennan, Keifel, and Bell [99] did not refer to the Commonwealth submission and said it was unnecessary to pursue the NSW and Queensland question.

Whether the decision leaves open scope for further argument at some stage by the Commonwealth and the states for narrowing the application of the Lange principles remains to be seen.

The Lange test

As stated by the Chief Justice:

47. The test adopted by this Court in Lange v Australian Broadcasting Corporation[90], as modified in Coleman v Power [91], to determine whether a law offends against the implied freedom of communication involves the application of two questions:

1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people?

Reasonable and appropriate limitation

The Chief Justice [50] and other justices in the joint judgment [95] found that s 42 of the Serious Sex Offenders Monitoring Act 2005 had the capacity to burden political communication. But all concluded any constraint was incidental, not direct, and reasonably appropriate and adapted to serve a legitimate end of the kind set out in step two of the test.

Lange freedom not limited to Commonwealth politics or government

Chief Justice Gleeson addressed this issue:

48. It was submitted for the Commonwealth that the implied freedom applies only to communications in relation to politics or government at the Commonwealth level. That limitation may be a logical consequence of the source of the implied freedom. That source is to be found in the scheme adopted by the Commonwealth Constitution for a representative democracy and for the amendment of the Constitution by referendum. The limit propounded, despite its logical attraction, is not of great practical assistance. There is today significant interaction between the different levels of government in Australia. The use of cooperative executive and legislative arrangements between Commonwealth and State and Territory governments through the Council of Australian Governments, Ministerial Councils and otherwise, makes it difficult to identify subjects not capable or potentially capable of discussion as matters which are or should be or could be of concern to the national government. The supervision and rehabilitation of serious sex offenders, for example, may raise questions about the adequacy of Commonwealth funding of State and Territory services and cooperative arrangements between the Commonwealth and the States and Territories. It is notable that the suppression orders made in the present case authorised the entry of the offenders' names on the Australian National Child Offender Register. The Register is the product of an Intergovernmental Agreement to which the Commonwealth is a party[93].
49. The generality of this Court's statement in Lange about the scope of the communications covered by the freedom tends to bear out these observations[94]:

"this Court should now 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."

And further[95]:"the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable."

The range of matters that may be characterised as "governmental and political matters" for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government.

The joint judgment [92-99] accepted that Lange rights arise from the necessity to protect representative and responsible government, extending to acts or omissions of legislative and executive branches of government, but not to the exercise of judicial power, [at 93] citing Justice McHugh in APLA v Legal Services Commissioner (NSW) that

"(c)ourts and judges in the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense."