Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: applied
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 ? The Court in Lange emphasised that the freedom of communication only covers those communications necessary for the functioning of the institutions of representative and responsible government identified in the text and structure of the Constitution (at 561). More particularly, to the extent that the freedom of communication is an implication drawn from ss 7 , 24 , 64 and 128 of the Constitution , the implication extends only insofar as it is necessary to give effect to those sections (at 567). In 'The Freedom of Political Communication Since Lange' in Stone A and Williams G, The High Court at the Crossroads: Essays in Constitutional Law' (The Federation Press, 2000) at pp 6 7, Ms Stone summarised the post -Lange position as follows: 'Thus the effect of Lange appears to be a narrower scope for the freedom of political communication, excluding discussion that is not directed to a particular law, policy or activity of the government. However, on close analysis it is apparent that Lange does not require this conclusion nor preclude the opposite conclusion. What Lange requires is that there be a link between the discussion of some matter and the institutions of representative and responsible government that the court has identified in the text. One of these institutions is the free election of members for the House of Representatives and the Senate.' (Emphasis in original) In the applicant's submission, Join the Caravan and Defence of the Muslim Lands are relevant to the choices facing voters and to the opinions they might form as to the appropriate governmental response to the threat of terrorism. The applicant noted that there is a document in evidence that contains an extensive list of legislative measures introduced to deal with the threat of terrorism. The extent of the response is the subject of significant debate and differences of opinion. See, for example, Golder B and Williams G, "Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism" (2006) 8 Journal of Comparative Policy Analysis 43 62, and, in the political sphere, see the Senate Hansard on 5 December 2005. 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'. 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. 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.