Freedom of Political Communication, the Constitution and the Common Law

Abstract

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication. One important effect of this development has been to focus Australian constitutional debate on the long standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution and over the century since the framing, it has been a constant point of reference for the High Court of Australia. However, the influence of the First Amendment is particularly significant since the Bill of Rights and the other rights provisions of the United States Constitution have traditionally been thought of as a part of the American constitutional tradition which Australia does not share. The influence of American constitutional jurisprudence, and specifically First Amendment law, in the High Court of Australia has never been more significant than in the most adventurous of its decisions on the freedom of political communication: Theophanous v Herald and Weekly Times and Stephens v West Australian Newspapers. Here, the High Court significantly expanded the protection of political communication by adopting a rule similar to the New York Times v Sullivan doctrine. That is, the Court limited the capacity of political figures to bring actions for defamation. However, most unusually for recent decisions of the High Court, these cases were reconsidered and considerably reformulated by the Court only three years after they were first announced, in Lange v Australian Broadcasting Commission. The short life of these cases appears to lend fuel to those who argue against the use of the American precedent, and specifically First Amendment jurisprudence, in interpreting the Australian Constitution. In this article, I will join those who have expressed such concerns. My focus, however, is somewhat different from previous analyses. I will consider a difference between the two systems that has been overlooked: the different jurisdictions of the highest appellate courts. The High Court, unlike the Supreme Court of the United States, has jurisdiction to hear appeals from all courts, state and federal. In hearing these appeals, it has jurisdiction over matters of common law as well as federal law and the Constitution. The significance of the High Court's role as the interpreter of the common law was highlighted by Theophanous and Stephens. In those cases, argument was addressed to the High Court on both the protection of freedom of speech by the Constitution and by the common law of defamation. Had it been so inclined, the Court could have avoided the constitutional issue entirely through a decision on the common law. However, the principal basis of the decision of the majority was the Constitution. In my view, the Court’s failure to appreciate the significance of its common law jurisdiction helps explain where the High Court went wrong in Theophanous and Stephens, and how it might have avoided facing so serious a challenge to recent cases as it did in Lange. Before proceeding to make this point, however, I devote Part I of this article to explaining the nature and origins of the High Court’s jurisdiction on matters of common law and compare it to the jurisdiction of the United States Supreme Court. In Part II, I outline Theophanous and Stephens and compare the constitutional approach of the majority to the common law approach of two of the dissenting Justices. Part III contains the heart of my argument. I consider how the High Court ought to proceed when a case before it can be decided either by the common law or by interpretation of the Constitution. I argue that the common law brings with it significant advantages so that in many cases where the two overlap, the High Court ought to prefer the common law and I use Theophanous and Stephens to illustrate my point. In Part IV, I identify more precisely the kinds of cases in which the benefits of a common law solution should lead the High Court to prefer it and defend my argument against some of the most obvious objections to it. Finally, in Part V, I consider the reformulation of the Theophanous doctrine in Lange and the extent to which that decision is responsive to the critique I have launched.