LWZ203 Constitutional Law Q(i) Do you believe that Lange vs Australian Podcasting Corporation (1997) 189 CLR 520 was correctly decided? The Constitution contains few express rights and freedoms. Amongst OECD countries, Australia and Israel are countries whose constitution does not have an explicit Bill of Rights. The High Court of Australia has recognized that the structure and the text of the constitution , including the system of “representative and responsible government” may give rise to implied freedoms. An implied Freedom of Speech has been identified on several discussions, including Nationwide News v Wills and Australian Capital Television v Commonwealth . (ACTV). This implied freedom was further extended in Theofanous v Herald & Weekly Times and Stephens v West Australian Newspapers Ltd. From the cases above, the High Court reasoned that a system of representative government, as prescribed by the constitution, give rise to an implication that it is necessary to discuss political and government affairs. In the ACTV case, the court further recognized the existence of an implied freedom of speech. The Justices, however, arrived at this implication off free speech in different ways This gave uncertainty to the scope of this implied freedom. The Theofanous case and the Stephens case explored the outer limits of this implied freedom. The defendant in the Theofanous case argued that any views which the plaintiff deemed critical was protected by the implied freedom to discuss political and government matters. The High Court accepted the publication fell within the concept of political discussion. Deane J, stated (at R4) “It is sufficient to say “political discussion” includes discussions of the conduct, policies or fitness for office or government, political parties, public officers and those seeking pubic office”. The High Court majority argued that this broader implied freedom is based on the priniciples of representative democracy. In Lange, the High Court took the opportunity to reconsider the divergent perspectives that had emerged in the previous free speech discussions. In Lange, the High Court formulated a two-stage test on whether a law violated the freedom. The second test which calls for balancing of competing public interests. The reformulated law based on Lange was applied in Levy. The High Court found that regulations were necessary to protect the safety of the public and thus trumped freedom of political speech. The consensus that the High Court reached with Lange were short lived. In Coleman v Power, Coleman was charged with using “insulting words”, assault towards police officer and was convicted under the Vagrancy Act of QLD. S7(1)(d). Coleman argued he was using words that implied political communications. If that was the case, then he would be protected under the implied right of freedom of political communication. The High Court found the conviction under S7(1)(d) to be unlawful by the was still conceited for assaulting the policeman. The High Court accepted that communication allegedly corruption of police ere protected and that political communication can include “insults”. The High Courts decision by a 4:3 marking showed that there were two views about reasonable limits on freedom of political communication. One view holds that offensive expression is a necessary evil in political debate. This view feels that offensive expression is transient and unlikely to leave a long term mark on the intended recipient. Furthermore, if the law is too broad and all encompassing, it might stifle political debate and discussion. The other view, takes the harm caused by offensive expression more seriously but it also seems unconcerned about over-regulation of political communication. This view feels that if the laws overreach, the court will be able to restrain them. My opinion is that the High Court has “backslid” from Lange in that the fine detail of cases fail to conform to the two steps formulated in the Lange test. Some justices argue that some elements in both steps are of no relevance and as such fail to proceed to the second step of the Lange test. (iii) Outline briefly the material facts and the reasoning of the Justices in Roach v Electoral Commissioner. As with the “political speech” cases, do you think that the reasoning is more judicial “sleight of hand” or instead that it is consistent with the Courts professed principles for the drawing of constitutional implications? Material facts:
Argument: Section 93 (8AA) is invalid as it does against the implied right to vote. Judgment: The Act was against the implied meaning of S7 and S24 “directly chosen by the people” Parliament has power to withhold voting rights but this has to be for a substantial reason, such as people who have committed serious criminal conduct. However, imprisonment failed as a method to identify serious criminal misconduct. If one was imprisoned for say, homelessness, this was unrelated to the seriousness of the offense. Gummow, Kirby and Crennann JJ decided the validity of the legislation by applying an “appropriate and adapted” test similar to the second limb of the Lange test, respecting freedom of political communications The arbitrary reasons for imposing or not imposing, short terms of imprisonment mentioned by Gleeson CJ were used to support this conclusion. Outcome: The High Court recognized that there is a constitutionally protected right to vote in Australia. The original provisions of the Electoral Act were upheld and Ms Roach was not able to vote as her term was longer than 3 years. In my opinion the High Court has constituted tests similar to that of Lange in this case to further entrench constitution rights which were implied only. (iv) Has Attorney-General for South Australia v Corporation of the City of Adelaide and Ors (2013) ACA 3 and Monis v The Queen, Proudis V The Queen (2013) HeA4 changed the Law? The first case was about two street preachers which were convicted by breaching a by-law of the Adelaide City Council which prohibited people from preaching (among other activities) in Rundle Mall without a permit. The street preachers appealed their conviction to the High Court citing their implied constitutional right of freedom of communication. The High Court found that the by-law did not interfere with political communication. It’s aim was to promote road safety (the major objective of the by-law was the safely of citizens on the road- the road had to be safe for all users) and did so in a measured way. As the consequence of this law, as held by the High Court was not to restrict political communication, the by-law was not unconstitutional. In the Monis and the Droudis cases, Monis wrote spiteful letters to the relatives of deceased servicemen that had been kissed in Afghanistan. He was charged and conceited after Criminal Code (Cth) which prohibits using the postal service to promote offensive material. Droudis was also charged in aiding and abetting him. The High Court found, that, using the Lange test whether the political statement serves both a legitimate and proportionate purpose. Three of the High Court judges found that the Criminal Codis provision did have a protective purpose, which was the prohibit the misuse of postal services. The other three judges disagreed with the term “offensive” and the vague nature of its purpose. The result of a 3-3 tie split in the High Court meant that the decision of the matter which was heard by the MSW Court of Criminal Appeal was upheld, the rule being when the High Court is tied, the discussion under appeal stands. From the cases above, it does not seem that those cases have changed the law. As it stands, the High Court will protect the freedom of political communication, within the limits of the Lange test. In the case of Monis and Droudis, had the letters been sent, even if “offensive” to the members of Parliament, then it is quite likely the High Court would have found in their favor as this would have encouraged political debate. (v) Do we have freedom of association and what are the ambits? With the implied freedoms in the constitution, one does not know how many exist and if they do, will the High Court affirm them one day and reject them the next, as it has to power to do so. – that is it does not have to follow its own precedent. In Kruger Gaudrom, suggested that freedom of association and movement were aspects of freedom of political communication and as such protected by the implied rights of the constitution. Kirby J and McHugh J supported these views is Mulholland. The problem arises in that the other Justices did not shake these views. In Mulholland, Callinan J Specifically rejected the existence of any implied freedom of association. Unless the other cases in the High Court definitively favors the freedom of association, as much as these implied freedoms may be compelling, they have not been approved by the something or the High Court. (vi) What is gerry-manderring and boundary rigging and how do the courts approach the issue?
 Nationwide News Pty Ltd v Willis (1992) 177CLR1  Australian Capital Television v Commonwealth (1992) 177 CLR 106  Theofanous v Herald & Weekly Times Ltd (1994) 182 CLR 211  Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211  Lange v Australian Broadcasting Corporation (1997) 145 ALR 96  Levy v Victoria (1997) 189 CLR 579  Coleman v Power (2004) 220 CLR 1  Retrieved from “https://en.wikiedia.org/w/index.php?title=Roach_V_Electoral_Commissioner&oldid=622735408”  Kruger V Commonwealth (1997) 190 CLR 1 at 115-6  Mulholland v Australian Electoral Commission (2004) 220 CLR 181
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