Stone, Adrienne --- "Justice Gaudron and Constitutional Rights" [2004] UMelbLRS 2

Last Updated: 17 August 2010

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] HCA 27; (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] HCA 53; (1989) 168 CLR 461. In that admirably short and clear judgment (just 11½ pages of the Commonwealth Law Reports)[1] Justice Gaudron advanced her conception of “discrimination”, which became a pervasive feature of her interpretation of the Constitution.[2]

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] HCA 18; (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.[3]

The promise of this passage is borne out, I will argue, by her judgments on the rights implied from responsible and representative government.

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] HCA 46; (1992) 177 CLR 1 and Australian Capital Television v Commonwealth [1992] HCA 45; (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.[4]

Justice Gaudron was also a member of the court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (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”.[5] On the reasoning in Lange, it is only communication related to these institutions – free elections for the House of Representatives and the Senate;[6] an executive responsible to the Parliament;[7] and free voting on proposals for constitutional amendment[8] – that qualifies for special protection.[9]

I have elsewhere criticised the court’s judgment in Lange.[10] 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.[11] Lange therefore exhibits an undue faith in the power of constitutional text and structure.[12]

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] HCA 31; (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,[13] leaving the protesters unprotected by the freedom.[14]

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 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.[15] 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.[16] 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.[17]

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] HCA 45; (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.”[18] In Kruger v Commonwealth [1997] HCA 27; (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[19] and may now have regained general support.[20] Similarly, other judges have recognised an implied freedom of movement[21] though only Justice Gaudron has been prepared to find law invalid on this basis.[22] 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.

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 Generations[23] that the laws authorising their removal[24] 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.[25] 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.[26]

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.[27]

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.[28] 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.[29] Moreover, as Justice 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.[30] 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”.[31] 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.[32]

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.[33]

It is difficult to identify a rationale for the use of this test in the case law. No single test appears to be agreed upon[34] nor does the court deal directly with arguments for (or against) the use of two-tiered tests.[35] 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.[36] 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”.[37]

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.[38] 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.[39] 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.[40] 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.[41]

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.[42]

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 communication[43] and some unease about constitutional rights more generally.[44]

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.[45]

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.

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*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.

[1] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 564-575.
[2] On her “discrimination” jurisprudence, see Morgan J, “Equality and Discrimination: Understanding Context”, pp 312-326.
[3] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 569.
[4]. See also Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211.
[5] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 524.
[6] Contemplated by the requirement of ss 7 and 24 that those Houses be “directly chosen by the people”.
[7] Contemplated by, among other sections, the requirement of s 64 that Ministers be members of the Parliament.
[8] Contemplated by s 128, which sets out the referendum procedure.
[9] 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] HCA 25; (1997) 189 CLR 520 at 566-567, and McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 232.
[10] Adrienne Stone, “The Limits of Constitutional Text and Structure” [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668. For a recent judicial response, see Coleman v Power [2004] HCA 39 at [84] – [90]
[11] 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” [2001] MelbULawRw 13; (1997) 25 Melbourne University Law Review 374 at 378-388 ).
[12] 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.
[13] Or more specifically certain institutions of federal governments. See Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 and nn 7-9 and accompanying text.
[14] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 596, 626. See also Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211.
[15] For example, through a tied grant to a State pursuant to s 96. For a fuller argument on this point see Stone n 12.
[16] 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] HCA 25; (1997) 189 CLR 520 at 561-562.
[17] See Levy v Victoria [1997] HCA 31; (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] HCA 31; (1997) 189 CLR 579 at 620.
[18] 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.
[19]Indeed, that understanding was widely held in the early cases. See, Theophanous v Herald & Weekly Times [1994] HCA 46; (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] HCA 31; (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] HCA 31; (1997) 189 CLR 579 at 643-644.
[20] Roberts v Bass [2002] HCA 57; (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].
[21] Kruger v Commonwealth [1997] HCA 27; (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] HCA 96; (1912) 16 CLR 99 at 109-110; Higgins v Commonwealth (1998) 79 FCR 528 at 535.
[22] In Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1. See nn 32-35 and accompanying text.
[23] 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).
[24] Aboriginals Ordinance 1918 (NT).
[25] 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).
[26] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 142-144.
[27]Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 120.
[28] 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] HCA 25; (1997) 189 CLR 520 at 561.
[29] A passage of Justice Brennan’s judgment in Cunliffe v Commonwealth [1994] HCA 44; (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 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] HCA 44; (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] HCA 44; (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.
[30] 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.
[31] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 619.
[32] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 619. In Kruger v Commonwealth [1997] HCA 27; (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).
[33] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 129.
[34] 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” 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.
[35] 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?>
[36] 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.
[37] Schauer F, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982) p 86.
[38] See “The freedom of political communication and State political matters” p 297.
[39] See n 29and accompanying text.
[40] See “The freedom of political communication and State political matters” p 297.
[41] Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 106-107.
[42] See generally, Rubenstein, K, “Meanings of membership: Mary Gaudron’s contributions to Australian citizenship” pp 303-311.
[43] 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.
[44] 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.
[45] 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] HCA 54; (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] HCA 16; (1971) 122 CLR 353 at 396 (per Windeyer J).