Case: Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272
Outcome: cited
at the matters generally, in the applicant's submission, the following are protected: (1) the freedom of the Australian people to discuss government and political matters: Nationwide News v Wills [1992] HCA 46 ; (1992) 177 CLR 1 at 50; (2) the dissemination of information, opinions and ideas about all aspects of the Government of the Commonwealth: Nationwide News v Wills at 74; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 364; and (3) the freedom to communicate views on a wide range of matters that may call for, or are relevant to, political action or decision: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 138. And at [379] [380], per Hayne J: '[379] Accepting that there are these connections between political controversy or debate and some questions about personal injury litigation or some particular pieces of litigation does not mean that the impugned regulations effectively burden the freedom of communication about government or political matters whether in their terms, operation or effect. What the impugned regulations preclude is the publication, by a lawyer, of an advertisement including: (a) any reference to or depiction of personal injury; (b) any circumstance in which personal injury may occur or any activity, event or circumstance that suggests or could suggest the possibility of personal injury or any connection to or association with personal injury or a cause of personal injury; or (c) a personal injury legal service. That is, the impugned regulations take as the legal (and practical) focus of their operation the publication of communications about events that have happened or might happen, and have caused or might cause personal injury, and the rights and remedies of individuals. Save in extraordinary circumstances, the rights and remedies in respect of which a personal injury legal service might be engaged will be rights and remedies existing under the law as it stood at the time an injury was sustained. A communication about any of these subjects is not a communication about government or political matters. [380] As Brennan J pointed out in Cunliffe v The Commonwealth , it is necessary to distinguish between laws controlling an activity and laws restricting political discussion about whether that activity should be controlled. The impugned regulations are of the former type, not the latter. They control an activity lawyers' advertising. They are directed at communications about events (actual or hypothetical) and about rights and remedies. They are not directed at communications about whether the happening of events should be regulated differently or whether available rights and remedies should be changed. These are reasons enough to conclude that the impugned regulations do not inhibit the freedom of communication about government or political matters.' In this case, the Attorney submitted, the challenged law is directed to controlling (or preventing) the activity of promoting, inciting or instructing in matters of violence or crime. The law is not directed at communications about the nature or extent of anti-terrorism laws, which is a subject untouched by the law in issue. No part of that political communication involves promoting violence or crime; at least not one that falls within the protection implied to give effect to the provisions in the Constitution that serve to protect and promote the democratic institutions established therein. 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.