Case: Coleman v Power [2004] HCA 39 ; (2004) 220 CLR 1
Outcome: applied
the present case, the applicant submitted, the underlying reason for narrowly defining the meaning of 'promote or incite' is to ensure that the law does not extend beyond its public purpose: Coleman v Power [2004] HCA 39 ; (2004) 220 CLR 1 at [182] per Gummow and Hayne JJ. Thus, if the author of the books had the purpose of promoting or inciting crime or violence yet the books did not or were not likely to have that effect, no overriding public purpose would be served by banning the sale of the books. This is particularly so where the ideas contained in the books are said to be at the frontline of the 'battle of ideas' to which the Federal Government refers in its 2004 White Paper entitled 'Transnational Terrorism: the Threat to Australia' . To ban the books deprives Australians of the opportunity of reading the material and making up their minds as to the extent of the threat from terrorism and the ideas at conflict in the so-called 'battle'. This approach to the interpretation of the Code, the applicant submitted, is on all fours with the approaches adopted, particularly in the joint judgment of Gummow and Hayne JJ, but also in the judgment of Kirby J, in Coleman v Power . Coleman v Power concerned s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). The appellant argued that the section breached the implied freedom of political communication (to use a shorthand expression). In order to determine whether the section breached the implied freedom, it was necessary to first construe the section. In construing the legislation, Gummow and Hayne JJ, in their joint judgment, made a number of points which, according to the applicant, impact upon the exercise of statutory interpretation required in the present case. First, at [185] they said: 'First and foremost is the fact that s 7(1)(d) creates a criminal offence. The offence which it creates restricts freedom of speech. That freedom is not, and never has been, absolute. But in confining the limits of the freedom, a legislature must mark the boundary it sets with clarity. Fundamental common law rights are not to be eroded or curtailed save by clear words.' The applicant referred to Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567, 568, where the High Court set out a two-stage test for determining whether a law infringes the constitutional implication. The test, as slightly modified in Coleman v Power , is as follows: (1) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? (2) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of government prescribed by the Constitution ? According to the Attorney, it appears that the Lange test as refined in Coleman v Power involves two limbs, but the second has three elements: 1. Determining whether the law effectively burdens communication about government or political matters. 2. Identifying the object of the law and determining whether it is incompatible with the system of government prescribed by the Constitution . 3. Determining whether the manner in which the law achieves that object is incompatible with the system of government prescribed by the Constitution , in that the law is not reasonably appropriate and adapted to its end. THE FIRST LIMB The Attorney submitted that the concept of 'communication about government or political matters' is not free-standing. To the contrary, the concept is confined by those provisions of the Commonwealth Constitution which require that federal elections and referenda be free and that federal electors have access to information relevant to their choice and which prescribe the federal system of responsible government principally, ss 7 , 24 , 64 and 128 : see Lange at 560 561; see also at 567, 571, 575. According to the Attorney, as Lange made clear, the constitutional requirement of freedom of communication 'can validly extend only so far as is necessary to give effect to these sections' (at 567): see also Coleman v Power , McHugh J at [89], Kirby J at [228], Callinan J at [291] [292] and [294] and Heydon J at [320], [331] and [335]. The Attorney submitted that it is of the essence of the Lange test that before a law will be held invalid, it must ' effectively burden' (at 567) (emphasis added) the freedom of communication about federal government and political matters by actually tending to impair the effective operation of the constitutional system of representative and responsible government ( Coleman v Power per McHugh J at [91]). As McHugh J went on to say in Coleman v Power , '[i]n all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence' (at [91]). The Attorney submitted that the present Code does not so burden the freedom of communication about government or political matters. Contrary to the applicant's submission, in the Attorney's submission the question for the Court is not whether some means other than those chosen by the Parliament may have been preferable or less onerous, but rather whether Parliament's choice was a reasonable one in light of the burden which it places on the implied freedom of communication about government and political matters: Lange at 561 562, 567. See also Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 598 per Brennan CJ, 608 per Dawson J, 614 615 per Toohey and Gummow JJ, 618 620 per Gaudron J, 627 628 per McHugh J, 647 648 per Kirby J; Coleman v Power at [31] per Gleeson CJ, [l00] per McHugh J, [292] per Callinan J, [328] per Heydon J; cf. at [235] per Kirby J; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at [32] [33] per Gleeson CJ, [248] [249] and [256] [267] per Kirby J, [360] per Heydon J. For the corresponding position under the Canadian Charter of Rights and Freedoms, see R v Sharpe [2001] 1 SCR 45 at [96] per McLachlin CJ, Iacobucci, Major, Binnie, Arbour and LeBel JJ: 'It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted'. The Attorney submitted that the circumstances which bear upon the reasonableness of the Parliament's choice of means will vary from case to case. But they will usually include the nature and importance of the legislative object and the purpose, operation and effect of the particular law, including the degree to which the law burdens the discussion of government or political matters. Where the law is directed at or involves a substantial curtailment of discussion of federal government or political matters, 'reconciliation with the constitutional implication will be more difficult': Cunliffe v The Commonwealth at 339 per Deane J. As to the distinction between laws that have the purpose of restricting discussion of government or political matters and those that merely affect it incidentally, see generally Levy v State of Victoria at 611 and 614 per Toohey and Gummow JJ, at 618 619 per Gaudron J, at 645 per Kirby J. See also Coleman v Power at [326] per Heydon J; cf. at [30] [31] and [33] per Gleeson CJ; Mulholland v Australian Electoral Commission at [40] per Gleeson CJ. Here, the law challenged is not directed to communications about government or political matters. Depending on those matters, the extent of availability of alternative means to achieve the legislative object may also be relevant. In relation to APLA (see [182] above), the applicant made the following points: (a) The first limb of the Lange test looks to the 'terms, operation or effect of the law' . See also the passage from McHugh J in Coleman v Power at [91] (quoted at [179] above). (b) The practical effects of the law in the present case include preventing Australian voters from reading the contents of the books. To that extent the law restricts Australian voters from knowing what are the ideas contained in the books and what those ideas convey about the nature of the terrorist threat. (c) The Attorney's conclusion in the first two sentences of [185] above latches on to what the law is directed to and ignores its practical effect. I am unable to comprehend how the Code, specifically its classification scheme which restricts publications that promote, incite (or instruct) in matters of violence or crime, accepting for present purposes that that latter matter is to be determined by reference to the purpose or intent of the publication rather than its effect or likely effect, '... impacts or tends to impair the effective operation of the constitutional system of representative and responsible government by impermissibly burdening communications on political or governmental matters': Coleman v Power at [91] per McHugh J. Even if one accepts that there could not be any suggestion that the Rabelais article in Brown was relevant to the political process, what was said by Heerey J at 246E (quoted at [180] above) was equally apposite to the present case. Indeed, despite the best efforts of Senior Counsel for the applicant to make the two publications in the present case relevant to that political process, it is important not to lose sight of what that political process is the effective operation of the constitutional system of representative and responsible government. Communications that promote, incite (or instruct) in matters of violence or crime do not fall within its architecture or framework; they therefore cannot burden or impair it. On any view, it is not necessary that I consider the second limb of the Lange test or, on the Attorney's view of Coleman v Power (see [187] above), the second and third elements of that limb. Had it been necessary, I would have found the object of the relevant provisions of the Code to be compatible with the system of government prescribed by the Constitution and that the manner in which those provisions achieve that object are compatible with the system of government prescribed by the Constitution ; in other words, the relevant provisions of the Code were reasonably appropriate and adapted to that end.