Download Justice Gaudron and Constitutional Rights

This article was published in the Public Law Review, Volume 15, Issue 1, 2004
Justice Gaudron and constitutional rights
Adrienne Stone*
Justice Gaudron’s elevation to the bench occurred just before the High
Court began its reinvigoration of some of the express constitutional rights,
its development of the freedom of political communication (which, despite
some skittishness about the term, can accurately be described as a
constitutional right), and its exploration of the power of Ch III of the
Constitution to protect rights.1 So, any commentary on Justice Gaudron’s
judicial career cannot overlook her contribution to the development of
constitutional rights. As I will show, moreover, it is a field in which she has
been an important and at times distinctive voice. Given the length of her
Honour’s career, I will not attempt a full survey of Justice Gaudron’s
judgments on these matters. Instead, I will reflect on a few key judgments
principally those concerning rights implied from representative and
responsible government. Many of my comments will draw on Justice
Gaudron’s judgment in Kruger v Commonwealth (1997) 190 CLR 1, which
contains a particularly full and interesting statement of her views.
SUBSTANCE OVER FORM
Before proceeding to discuss the rights implied from representative and responsible government, it is
worth reflecting on her Honour’s judgment in Street v Queensland Bar Association (1989) 168 CLR
461. In that admirably short and clear judgment (just 11½ pages of the Commonwealth Law Reports) 2
Justice Gaudron advanced her conception of “discrimination”, which became a pervasive feature of
her interpretation of the Constitution.3
For my purposes, the judgment is important for Justice Gaudron’s adoption of a test that
considered the actual effect of the challenged law, rather than the terms in which the law is expressed.
In this respect, Justice Gaudron was well within the mainstream of that court. All the justices in Street
adopted an interpretation of s 117 that turned on the actual effect of the impugned law. The court thus
extended the approach taken to s 92 in Cole v Whitfield (1988) 165 CLR 360 and transformed s 117
from an absurd and easily avoided provision of the Constitution to a meaningful limitation on
government. In Justice Gaudron’s judgment, the point was made generally, as a point about a general
approach to the interpretation of constitutional rights:
It is now accepted that in the interpretation and application of the Constitution, particularly its
guarantees of freedom and the prohibitions by which those freedoms are secured, regard should be had
to substance rather than form.4
The promise of this passage is borne out, I will argue, by her judgments on the rights implied from
responsible and representative government.
*Fellow, Research School of Social Sciences, Australian National University. This article is based on a speech delivered at the
Centre for Comparative Constitutional Studies Conference, Melbourne Law School, The University of Melbourne (5 March
2004). Thanks are due to Graeme Hill for his encouragement and for a review of an earlier draft.
2
Street v Queensland Bar Association (1989) 168 CLR 461 at 564-575.
On her “discrimination” jurisprudence, see Morgan J, “Equality and Discrimination: Understanding Context”, pp 312-326.
4
Street v Queensland Bar Association (1989) 168 CLR 461 at 569.
3
THE FREEDOM OF POLITICAL COMMUNICATION AND RELATED FREEDOMS
The recognition of rights implied from responsible and representative government is among the most
remarkable and interesting judicial innovations in Australia’s constitutional history. Justice Gaudron
was one of the founders of the doctrine. She was a member of the majorities that recognised the
freedom of political communication in Nationwide News v Wills (1992) 177 CLR 1 and Australian
Capital Television v Commonwealth (1992) 177 CLR 106, and that applied the freedom to limit the
common law of defamation in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.5
Justice Gaudron was also a member of the court in Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520, a unanimous decision that is often regarded as having confirmed but narrowed
the freedom of political communication. In essence, Lange sought to limit the freedom of political
communication by stipulating that it exists to protect only those institutions of representative and
responsible government that can be identified in the Constitution’s “text and structure”.6 On the
reasoning in Lange, it is only communication related to these institutions – free elections for the
House of Representatives and the Senate;7 an executive responsible to the Parliament; 8 and free
voting on proposals for constitutional amendment 9 – that qualifies for special protection.10
I have elsewhere criticised the court’s judgment in Lange.11 In my view, the attempt to limit the
content to the freedom of political communication by reference to those institutions identifiable in the
text must fail. The resources of constitutional text and structure simply do not resolve the kinds of
questions that come before the court.12 Lange therefore exhibits an undue faith in the power of
constitutional text and structure.13
Justice Gaudron was a member of the Lange court but her Honour’s later judgments do not repeat
this misplaced reliance on constitutional text and structure. On the contrary, Justice Gaudron appears
readily to have appreciated that Lange did not effectively limit the freedom of political
communication. This realisation allowed her to develop the freedom of political communication in a
manner that was both highly protective of political communication but, at the same time, readily
reconcilable with Lange. I will give three illustrations.
Justice Gaudron’s interpretive orthodoxy
The freedom of political communication and State political matters
The first illustration is drawn from the application of the freedom of political communication to the
discussion of State political matters. Following Lange, some justices seem to have assumed that,
because the freedom existed to protect federal institutions, it could not be concerned with State and
Territory political matters. So in Levy v Victoria (1997) 189 CLR 579, some justices held that protest
against a State law allowing duck hunting had no significance for representative and responsible
government at the federal level,14 leaving the protesters unprotected by the freedom. 15
The issue well demonstrates the illusory nature of the limits imposed by Lange. For although
Lange confines the freedom to discussion of matters relevant to government at the federal level, it is
5
. See also Stephens v West Australian Newspapers (1994) 182 CLR 211.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 524.
7
Contemplated by the requirement of ss 7 and 24 that those Houses be “directly chosen by the people”.
8
Contemplated by, among other sections, the requirement of s 64 that Ministers be members of the Parliament.
9
Contemplated by s 128, which sets out the referendum procedure.
10
The doctrine does not extend protection to communication that relates to more general or “free standing” concept of
representative and responsible government. See generally, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
at 566-567, and McGinty v Western Australia (1996) 186 CLR 140 at 232.
11
Adrienne Stone, “The Limits of Constitutional Text and Structure” (1999) 23 Melbourne University Law Review 668. For a
recent judicial response, see Coleman v Power [2004] HCA 39 at [84] – [90]
12
For example, they do not resolve the complex question of which standard of review to apply (as argued in Stone above n 11)
nor does it assist in identifying the category of communication which should be regarded as political (see Stone A, “Rights,
Personal Rights and Freedoms: The Nature of the Freedom of Political Communication” (1997) 25 Melbourne University Law
Review 374 at 378-388 ).
13
Stone, above n 11. See also Stone A, “The Freedom of Political Communication after Lange” in Stone A and Williams G
(eds) The High Court at the Crossroads (Federation Press, 2000) p 1.
14
Or more specifically certain institutions of federal governments. See Lange v Australian Broadcasting Corporation (1997)
189 CLR 520 and nn 7-9 and accompanying text.
15
Levy v Victoria (1997) 189 CLR 579 at 596, 626. See also Stephens v West Australian Newspapers (1994) 182 CLR 211.
6
not hard to draw a link between State and federal matters. The federal Parliament can use its powers
in pursuit of an almost unlimited range of policies and can use its financial dominance to assert itself
in relation to just about any area of State policy. 16 Discussion of the political affairs of a State will,
therefore, usually have some relevance to federal politics and, consistently with Lange, may be
protected by the freedom. 17 Justice Gaudron appears immediately to have realised this point,
extending the coverage of the freedom of political communication to the protest against the Victorian
duck hunt.18
The freedom of movement
In a similar manner, Justice Gaudron recognised, in addition, that representative and responsible
government also gave rise to an implied freedom of movement. Thus following Lange, she quickly
reaffirmed a suggestion she made in Australian Capital Television v Commonwealth (1992) 177 CLR
106 at 212 that: “The notion of a free society governed in accordance with the principles of
representative parliamentary democracy may entail freedom of movement [and] freedom of
association.”19 In Kruger v Commonwealth (1997) 190 CLR 1 at 115, she made the point this way:
just as communication would be impossible if “each person was an island” so too it is substantially
impeded if citizens are held in enclaves, no matter how large the enclave or congenial its composition.
Freedom of political communication depends on human contact and entails at least a significant
measure of freedom to associate with others. And freedom of association necessarily entails freedom of
movement.
Again, Justice Gaudron’s point is entirely justifiable by reference to first principles. The argument for
the freedom of movement takes the same form as the argument for freedom of political
communication: it is a freedom necessary for the maintenance of the form of government
implemented by the Constitution.
Political communication by territorians
In neither of these cases was Justice Gaudron alone. Her position on the application of the freedom of
political communication to State political matters was shared by other members of the court 20 and
may now have regained general support.21 Similarly, other judges have recognised an implied
freedom of movement22 though only Justice Gaudron has been prepared to find law invalid on this
basis.23 These matters are significant, however, because they reveal steadfast attention to the basic
rationale in Lange. That clear sightedness is a hallmark of her approach to the implied freedoms and
is evident also in her approach to another matter on which her views are more distinctive.
16
For example, through a tied grant to a State pursuant to s 96. For a fuller argument on this point see Stone n 12.
That does not mean that discussion of State political affairs is immune from regulation. Like other kinds of communication
within the coverage of the freedom, it may be regulated by laws that are reasonably appropriate and adapted to a legitimate end
consistent with the form of government established by the Constitution. See Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 at 561-562.
18
See Levy v Victoria (1997) 189 CLR 579 at 618-619. Though like other members of the court, Justice Gaudron upheld the
law in question as a reasonable limitation on political communication: Levy v Victoria (1997) 189 CLR 579 at 620.
19
Justice Gaudron also suggested in that passage that “freedom of speech generally” may be required. So far that statement has
not been affirmed in the court but given the breadth of the category of “political communication” (see generally, Stone, n 12),
the implied freedom of political communication may be closer to a general free speech right than first appearances suggest.
20
Indeed, that understanding was widely held in the early cases. See, Theophanous v Herald & Weekly Times (1994) 182 CLR
104 at 122 (per Mason CJ, Toohey and Gaudron JJ), 164 (per Deane J). It was assumed by a number of judges in later cases,
Levy v Victoria (1997) 189 CLR 579 at 609 (per Dawson J), 614-615 (per Toohey and Gummow JJ). Justice Kirby is explicit
on the point: Levy v Victoria (1997) 189 CLR 579 at 643-644.
21
Roberts v Bass (2002) 212 CLR 1 at 29 (per Gaudron, McHugh and Gummow JJ), 58 (per Kirby J). See Lindell G, “The
Constitutional and Other Significance of Roberts v Bass – Stephens v West Australian Newspapers Ltd Reinstated?” (2003) 14
PLR 201 at 202-203. Coleman v Power [2004] HCA 39 seemed to raise the issue again. The case concerned communication on
a matter of State politics (the appellant had abused a Queensland police officer as, among other things, “corrupt” and was
prosecuted under a law prohibiting “threatening, abusive and insulting” language). However, the application of the freedom of
political communication to State political matters was not squarely addressed by the court because the issue was conceded by
the respondents: Coleman v Power [2004] HCA 39 at [73] – [74].
22
Kruger v Commonwealth (1997) 190 CLR 1 at 91 (per Toohey J), 116 (per Gaudron J), 142 (per McHugh J), cf 156
(Gummow J holding that there is no freedom of association for “political cultural and familial purposes”). See also R v
Smithers; Ex parte Benson (1912) 16 CLR 99 at 109-110; Higgins v Commonwealth (1998) 79 FCR 528 at 535.
23
In Kruger v Commonwealth (1997) 190 CLR 1. See nn 32-35 and accompanying text.
17
In Kruger v Commonwealth, Justice Gaudron rejected an argument made by the Commonwealth
that s 122 (the Territories’ power) was not confined by the freedom of association and movement
(which is derived from the freedom of political communication). That Commonwealth argument was
made in response to the claim by members of the Stolen Generations24 that the laws authorising their
removal25 infringed the implied freedom of movement – a freedom derived from the freedom of
political communication.
The position of the Territories was said to pose a special problem for the application of rights
derived from representative and responsible government. At the time during which the Ordinance
authorised the removal of the children from their families (the period from 1918 to 1957), the people
of the Northern Territory were not fully in the Commonwealth Parliament.26 Moreover, their
representation is not required by the Constitution. Justice McHugh concluded that, in the relevant
period:
[T]he residents of the Northern Territory had no part to play in the constitutionally prescribed system
of government or in the procedure for amending the Constitution. The right of the Territories to elect
senators or members of the House of Representatives was, as it is today, dependent on federal
legislation not constitutional entitlement … at no relevant time were the residents of the Northern
Territory part of the constitutionally prescribed system of government … nothing in the Constitution
implied that the plaintiffs had any freedom or immunity from laws affecting their common law rights
of association or travel.27
Justice Gaudron’s judgment contains a neat refutation of the point:
[R]esponsibility for [the] government [of the Territories] and, thus, for the welfare of those who reside
in them ultimately rests with the people to whom the Constitution entrusts the responsibility of
choosing Members of Parliament. Clearly, the proper discharge of that responsibility depends upon the
free flow of information with respect to all matters bearing upon Territory government and, also, those
matters which bear upon the actual government of the Territories. 28
The point her Honour makes is both simple and perfectly orthodox. For the Commonwealth
Parliament to be “directly chosen by the people”, the people must understand how the
Commonwealth carries out all its responsibilities. That includes understanding how it governs the
Territories (or allows the Territories to govern themselves). Discussion of the government of the
Territories requires a free flow of information and consequently a degree of freedom of movement for
Territorians.
As Justice Gaudron appreciates, it is not to the point that Territorians were not among “the
people” able to vote in the federal Parliament at that time or that their representation is not
constitutionally required. The application of the freedoms implied from representative government
does not turn on the identity of the person who wishes to speak (or to travel or associate). The
application of the freedoms turns on the nature of the communication burdened. That much is evident
from the very basis of the doctrine. The doctrine has an “instrumental” or “institutional”
justification.29 It is concerned to ensure that political discussion, and the movement necessary to
facilitate that discussion, occurs without unreasonable impediment. It is therefore concerned with the
content of communication not the identity of the speaker or communicator.30 Moreover, as Justice
24
That is, to Aboriginal and Torres Strait Islander children forcibly removed from their families by State and Territory
governments from the early part of the century to the early 1970s. See generally, Bringing Them Home: Report of the National
Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Human Rights and Equal
Opportunity Commission, 1997).
25
Aboriginals Ordinance 1918 (NT).
26
The Northern Territory was first granted a member of the House of Representatives by the Northern Territory Representation
Act 1922 (Cth) but Northern Territory representatives only gained full voting rights in Northern Territory Representation Act
1968 (Cth). See Margaret Healy, Territory Representation in the Commonwealth Parliament, Research Note 8 2000-01
(Commonwealth Parliament, Parliamentary Library, 2000).
27
Kruger v Commonwealth (1997) 190 CLR 1 at 142-144.
28
Kruger v Commonwealth (1997) 190 CLR 1 at 120.
29
The doctrine protects the freedom of political communication “necessary for effective operation of that system of
representative and responsible government provided for by the Constitution”: Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 at 561.
30
A passage of Justice Brennan’s judgment in Cunliffe v Commonwealth (1994) 182 CLR 272 at 328 might be thought to
contradict this argument. Justice Brennan held that “aliens … have no constitutional right to participate in or to be consulted on
Gaudron clearly saw, communication about the government of the Territories falls into that category,
as does the associated freedom of movement of persons within the Territories.
A vision of democratic government
So far, I have focused on the orthodoxy of Justice Gaudron’s interpretation of the freedom of political
communication and related rights. I should not, however, focus on method alone. The basic doctrine
of the freedom of political communication is compatible with a range of views. It is worth
considering, then, the substantive values that underscore Justice Gaudron’s vision. I will suggest that
two such values are readily identifiable. Her approach to freedom of political communication exhibits
an especially strong commitment to limiting governmental interference with speech and an inclusive
notion of citizenship, a matter that pervades other aspects of her approach to constitutional law.
Limits on government.
Justice Gaudron’s preference for relatively strong limitations on government is revealed by her
approach to the tests (or “standards of review”) that are developed to apply the freedom to particular
fact situations. These are the tests that determine the weight accorded to the freedom of political
communication when it is compared with other interests.
Justice Gaudron, more than most other justices, has been inclined to develop doctrines that give a
high priority to the importance of free political communication and that require government to
advance good reasons for the regulation of it. 31 In Levy, Justice Gaudron (drawing on a distinction
made by Chief Justice Mason and Justice McHugh in Australian Capital Television), held that if the
“direct purpose of the law is to restrict the freedom of political communication”, she would require
that it be “necessary” to achieve some “overriding public purpose”. 32 On the other hand, if regulation
“only incidentally” restricts political communication, she would employ the more lenient and familiar
requirement that the regulation must be “reasonably appropriate and adapted to” that purpose. 33
Critically, the adoption of this “two-tiered” test for validity has led Justice Gaudron to hold some
laws to an exceptionally high standard. In Kruger, this was a key to her finding that the challenged
Ordinance was invalid, a matter on which she was in dissent. The Ordinance was a law directed to
restricting the freedom movement and association. Because restriction of freedom was its very
purpose, Justice Gaudron subjected the law to an exacting standard of review. She held that
provisions allowing aboriginal people to be taken into custody (s 6), confined within reserves or
institutions (s 16) and allowing aboriginal children to be sent to certain institutions for schooling
(s 67(1)(c)) would be valid only if necessary for the attainment of some overriding public purpose or
for the satisfaction of some pressing social need, a standard they failed to meet. 34
It is difficult to identify a rationale for the use of this test in the case law. No single test appears
to be agreed upon35 nor does the court deal directly with arguments for (or against) the use of two-
matters of government in this country”. However, that point is made as part of a more general argument that the freedom of
political communication is a limitation on government which confers only “an area of legal immunity”; rather than “personal
right” of communication: Cunliffe v Commonwealth (1994) 182 CLR 272 at 327. However, he accepts that “aliens are entitled
to protection by applicable Australian law” and that would presumably include the benefit of the freedom of political
communication where it is otherwise applicable: Cunliffe v Commonwealth (1994) 182 CLR 272 at 328. Thus, consistently
with the argument just advanced, Justice Brennan’s analysis of the freedom of political communication does not turn on the
identity of the speaker.
31
The application of “two-tiered” standards of review that apply stricter forms of scrutiny in some circumstances is especially
clear in the judgments of Justice Gaudron and Justice Kirby. For a more comprehensive account of the “standards of review”
applied by the various justice in freedom of political communication cases, see Stone, n 11.
32
Levy v Victoria (1997) 189 CLR 579 at 619.
33
Levy v Victoria (1997) 189 CLR 579 at 619. In Kruger v Commonwealth (1997) 190 CLR 1 at 128 Justice Gaudron
expressed the distinction as one between a law the purpose of which was to restrict political communication (which requires a
compelling justification) and a law that restricted it as an incident to achieving some other purpose (to which the
proportionality test applies).
34
Kruger v Commonwealth (1997) 190 CLR 1 at 129.
35
As detailed in Stone, n 11 no single test seems to have achieved the support of the court. Following the High Court’s
unanimous decision in Lange, which appeared to endorse a single proportionality test, other standards of review including the
two-tiered test re-emerged. The recent decision in Coleman v Power again invoked a single standard of review (slightly
revising the test established in Lange): Coleman v Power [2004] HCA 39 at [32], [93], [196], [213]. However, the “two-tiered”
tiered tests.36 However, the application of a strict scrutiny test, where the law appears to be “directed
to” the restriction of freedom of political communication, might reasonably be thought to reflect
suspicion of governmental motives. The concern seems to be that where the government’s purpose is
to regulate political communication, its motives are particularly likely to be improper or its judgments
suspect in some other way.37 Thus, Justice Gaudron’s approach to freedom of political
communication shows an especially strong connection to a basic free speech rationale namely “a
distrust of government determinations of truth and falsity, an appreciation of the fallibility of political
leaders, and a somewhat deeper distrust of governmental power in a more general sense”. 38
Inclusion
The second substantive value discernable in her approach to the implied freedoms is an inclusive
notion of political citizenship. That is, Justice Gaudron appears determined that the implied freedoms
be an effective freedom in the sense that they should operate for the benefit of the Australian people,
conceived broadly. Important evidence of this idea in her treatment of the freedoms of political
communication and movement when relied upon by residents of the Territories.39 As we have seen,
Justice Gaudron applied to the freedom of political communication to political discussion by residents
of the Territories, without reference to their rights of communication representation. 40 However, other
aspects of her approach to rights in constitutional law reveal this as a latent concern.
To make this point I will focus on one matter outside the context of the freedoms implied from
representative and responsible government. In Kruger, the plaintiffs argued that the Commonwealth’s
power to make laws for the Territories was limited by the peremptory norm of international law
prohibiting laws authorising genocide. Justice Gaudron’s response is especially revealing. As
discussed above, Justice Gaudron rejected an argument that the special position of Territory residents
denied them the protection of the freedom of political communication. 41 Here Justice Gaudron deftly
inverts that argument and shows that the special position of the Territories makes a case for greater
protection. In a compelling passage she writes:
At least to the extent that the Constitution makes no distinct provision for the participation of the
people of a Territory in any electoral processes, it may fairly be said that it allows for territories to be
ruled as Commonwealth fiefdoms. That being so, the considerations which require that other grants of
power be construed without regard to possible abuse have no part to play … the better view is that
[Commonwealth power over the Territories] is to be construed in light of the fact that, unlike other
Australians, persons resident in a Territory have no constitutional right to participate in the democratic
processes and thus have no protection on that account in the event of an abuse of power. 42
So, in her view, the special position of the Territories does not give cause to deny rights to their
citizens but gives cause to extend their protection. Her commitment to democratic participation thus
leads her to include rather than exclude those who have the weakest democratic rights.43
approach was not directly addressed and it remains to be seen whether the use of that form of test will survive Coleman as
survived Lange.
36
For arguments pointing in opposite directions see Stone, n 11 (arguing that the Lange method requires the eventual
development of some relatively specific test, like the two-tiered standards of review) and Meagher D, “How The Lange Test
For Constitutionality Ought To Be Applied” to be published in a forthcoming edition of the University of New South Wales
Law Review (arguing for a single “proportionality” test).<AQ: has this been published yet?>
37
For a comprehensive analysis of the application of strict scrutiny in slightly difference circumstances (to content based
regulation of speech) see Stone G, “Content-Neutral Restrictions” (1987) 54 University of Chicago Law Review 46. Stone
identifies three basic justification for the application of strict scrutiny to “content-based regulation”: concern at the distorting
impact of such laws, concern that laws are likely to be improperly motivated and a distaste for the paternalism involved in
allowing the state to make judgments as to the worth of ideas: Stone G, at 57.
38
Schauer F, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982) p 86.
39
See “The freedom of political communication and State political matters” p 297.
40
See n 29and accompanying text.
41
See “The freedom of political communication and State political matters” p 297.
42
Kruger v Commonwealth (1997) 190 CLR 1 at 106-107.
43
See generally, Rubenstein, K, “Meanings of membership: Mary Gaudron’s contributions to Australian citizenship” pp 303311.
CONCLUSION
This article has been an appreciation of Justice Gaudron’s contribution to constitutional rights, with
particular reference to the implied freedoms of political communication and movement. I have written
in admiration of her Honour’s judgments in this field notwithstanding my criticism of the court’s
approach to the freedom of political communication44 and some unease about constitutional rights
more generally.45
I have been able to do so because Justice Gaudron’s contribution to this field avoids the most
serious concerns I have with constitutional rights. Arguments against constitutional rights are at their
strongest when the political preferences of judges are obscured behind a technical, doctrinal analysis
advanced as if it were a legal, politically neutral solution. My principal concern with the cases
developing the freedom of political communication is along these lines. The risk of the court’s
approach in Lange is that, by insisting that constitutional text and structure are the exclusive
determinants of the freedom, and refusing to acknowledge the inevitably value-laden nature of
constitutional adjudication, the real bases of the court’s decisions may be obscured. 46
Lange aside, Justice Gaudron’s judgments suffer from none of the obscuring formalism that
marked the court before Street and which Lange threatens to revive. She developed the freedom of
political communication and the related freedom of movement with close attention to their founding
principles but – as any judge interpreting constitutional rights must – infused them with a personal
vision of the rights and freedoms. That vision, moreover, is distinguished by a robust sense of the
freedoms required by the Constitution and a determination to extend their benefit broadly.
Whether this vision survives her departure from the court remains to be seen. However, even if
the current court continues to confine the freedoms implied from representative government, they
may be revitalized by a sympathetic court in the future. In these circumstances, Justice Gaudron’s
judgments will be an important resource. Justice Gaudron’s judgments demonstrate how the freedoms
can be given a comparatively expansive reading in a manner that is nonetheless consistent with the
existing authority of Lange. They are therefore likely to be very attractive to a rights-sensitive but
moderate court, which would like to reinvigorate constitutional rights without overturning established
precedent.
See Stone, nn 11, 12, 13 and Stone A, “Freedom of Political Communication, the Constitution and the Common Law” (1998)
26 Federal Law Review 219.
45
Expressed in Stone A, “The Australian Free Speech Experiment and Scepticism about the Human Rights Act” in
Campbell T, Ewing K and Tomkins A (eds) Sceptical Essays on Human Rights (Oxford University Press, 2001) p 392.
46
In Australian constitutional law, this danger was identified long ago, in critical analyses of the High Court’s decision in
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (Engineer’s Case), RTE Latham, “The
Law and the Commonwealth” in Hancock WK, Survey of British Commonwealth Affairs, Vol 1, Problems of Nationality
1918-1936 (Oxford University Press, 1937, reprinted 1949). See also Victoria v Commonwealth (1971) 122 CLR 353 at 396
(per Windeyer J).
44