Extracts from Levy-v-The-State-of-Victoria-and-Ors-1997-HCA-31
Read for yourself the full dissertation of the Justices of the High Court of Levy.
The plaintiff also pleaded that he had the further purpose of ensuring that the people of Victoria should be able to "form or exercise informed political judgments about the stance of the Victorian Government in continuing to support or permit duck shooting".
BRENNAN CJ. says:
"The freedom of discussion implied in the Constitution of the Commonwealth, unlike the subject of protection under the First Amendment of the United States Constitution, does not require consideration of the connotation of "speech" or of the conduct which might be thought to constitute a form of "speech". The implication denies legislative or executive power to restrict the freedom of communication about the government or politics of the Commonwealth, whatever be the form of communication, unless the restriction is imposed to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose[10] . In principle, therefore, non-verbal conduct which is capable of communicating an idea about the government or politics of the Commonwealth and which is intended to do so may be immune from legislative or executive restriction so far as that immunity is needed to preserve the system of representative and responsible government that the Constitution prescribes.
[ZEN: Ie. our Australian freedom is STRONGER than that in the USA!]
A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.
The conduct in which the plaintiff desired to engage and which was proscribed by the Hunting Season Regulations was calculated to express and was capable of expressing a political message. It was therefore conduct of the kind which, if the criteria presently to be mentioned existed, would be immune from legislative prohibition.
The Constitution does not erect a guarantee of freedom of communication in the same way as it erects a guarantee of freedom of interstate trade under s 92. There the freedom is expressed to be absolute and, faced with the impossibility of absolute freedom in that context, the Court is required to balance that freedom against those other interests in an ordered society which must be recognised by the law. Sections 7 and 24 and related sections require free elections and the question for the Court in a case such as this is whether the impugned law precludes the holding of elections of that character.
"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ... If the first question is answered 'yes' and the second is answered 'no', the law is invalid."
It must also be accepted that the constitutional freedom is not confined to verbal activity. We recognise that it may extend to conduct where that conduct is a means of communicating a message within the scope of the freedom.
In the present case, there was no greater curtailment of the constitutional freedom than was reasonably necessary to serve the public interest in the personal safety of citizens whilst they were in the waters of permitted hunting areas and the curtailment was reasonably capable of being seen as appropriate and adapted to the aim pursued in the Regulations. That aim itself was plainly within the regulation-making power conferred upon the Executive Government by the legislature in s 87 of the Wildlife Act.
"if the impairment of the freedom [of political communication] is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within power."
The freedom protected by the Constitution is not, however, a freedom to communicate. It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution. Unlike the Constitution of the United States, our Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters. But, as Lange shows, that right or privilege must exist under the general law.
[ZEN: This is an absurdity – my Right to Communicate exists independent of any law, any Constitution, etc – my right is an Inalienable Right to Communicate, which no government can grant me. However there may be consequences to exercising that right, which consequences go against community sensibilities, but nevertheless are imposed by the existing regime of so-called “responsible government”!]
What the Regulations did was to prevent them from putting their message in a way that they believed would have the greatest impact on public opinion and which they hoped would eventually bring about the end of the shooting of game birds. That being so, and subject to one qualification, the Regulations effectively burdened their freedom to communicate with other members of the Australian community on a political matter.
The constitutional implication does not create rights. It merely invalidates laws that improperly impair a person's freedom to communicate political and government matters relating to the Commonwealth to other members of the Australian community.
. Rights of the "sovereign people": A third foundation for the plaintiff's attack on the validity of reg 5 was an appeal to the sovereignty of the people of Victoria. It was argued that there was an ultimate common law restraint upon the exercise of power by the Parliament of Victoria in so far as it purported to enact or authorise a law diminishing the capacity of the people to enjoy their democratic rights or to express and agitate their views in a manner appropriate to a society where the people are the ultimate sovereign. The notion that the ultimate foundation for constitutional norms is the common law is not a new one[143] . However, it remains controversial[144] . With the passage of time since federation in Australia and changing notions of Australian nationhood, the perception that the Australian Constitution is binding because of its imperial provenance has given way (at least since the Australia Acts 1986) to an often expressed opinion that the people of Australia are the ultimate repository of sovereignty[145] . That view is not without conceptual and historical difficulties[146] . However, relying upon these opinions, the plaintiff submitted that no Australian Parliament, federal or State could deprive the "sovereign people" of their fundamental democratic rights. These, it was suggested, included freedom of political communication essential to the very operation of a Parliament representative of the electors. To the extent that the Victorian Parliament attempted to make, or authorise, a law which usurped the people's rights or interfered in their exercise, such a Parliament went beyond its lawful powers[147] .
In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?
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