Is freedom of expression alive and well in Australian fair work law? Part 1
I recently read an article published on line by an employment lawyer who argued that there is no fundamental common law or constitutional law principle in Australia which guarantees freedom of expression, even of freedom of political expression. Whilst this may be so in the context that there is no principle which confers private rights on individuals of this kind, it is wrong on a wider level because the High Court has repeatedly held that as a matter of constitutional law, there is an implied fetter upon all Australian parliaments which prevents them from passing laws which have the effect of restraining free expression and political expression.
In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 the High Court of Australia held that
- 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 ( per Brennan J at 50).
- 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 functions on their behalf (per Deane and Toohey JJ at 72).
In Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106it was said that:
- The efficacy of representative government depends upon the free communication on such matters [in relation to public affairs and political discussion] between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media and the views of all interested persons, groups and bodies and on public participation in, and access to, the discussion. In truth, in a representative democracy, public participation in political discussion is a central element on the political process: Chief Justice Mason at 139.
- 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” per Mason CJ at 142.
The precise nature of the implied freedom of political communication remained uncertain following these two cases. Chief Justice Mason described the implied freedom as a ‘freedom of communication in relation to public affairs and political discussion’. Justice Brennan referred to the ‘freedom of the Australian people to discuss governments and political matters’. Justices Deane and Toohey considered that ‘the Constitution’s implication of freedom of communication extends to all political matters, including matters relating to other levels of government within the national system’. Justice McHugh offered a narrower interpretation of the implied freedom, which focused closely on the requirements of specific sections of the Constitution. He argued that the ‘people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives’.
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court unanimously asserted that the implied freedom of political communication does not confer any personal rights to freedom of speech, but operates as a constraint of legislative and executive power. The Court held that:
- Although it is true that the requirement of freedom of communication is a consequence of the Constitution’s system of representative and responsible government, it is the requirement and no the right of communication that is to be found in the Constitution. Unlike the First Amendment to the US, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution .
- To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections. Although some statements in the earlier cases might be thought to suggest otherwise, when they are properly understood, they should be seen as purporting to give effect only to what is inherent in the text and structure of the Constitution .
In 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: Brennan J at 595; Justice McHugh at footnote 109; Brennan CJ at 594; Kirby J at 638–41.
In Unions NSW v New South Wales provisions of NSW law which prohibited persons or organisations other than enrolled electors from making donations in support of electoral campaigns were held to invalidly restrict the implied freedom of political communication. The Court confirmed that:
- 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.
Accordingly the scene has been set to address the implications of these principles to fair work laws in Australia, and in particular the impact upon an employee’s rights to make and publish expressions of opinion which might impact upon his or her job security.