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The freedom of political communications
IntroductionThe freedom of political communications is always considered as an implied constitutional right or implied right in Australia. The high court in Australia has been rather worried about the description, usually preferring to term it as freedom. The high court has always not been in support that the freedom is not a personal right and has come up with significant conclusions for the above statement, incorporating solutions to the relationship between the constitution and the common laws (Jones 392). In this paper, I will consider why the high court is worried of the description and the explanation “right” especially, why it insists that the laws do not confer “personal rights.” I argue that the statement can be elaborated in two different ways. The first, it means that the freedom is there to support a particular system of government rather than to secure value associated with persons such as autonomy hence freedom could be considered as an institution. Secondly, is denoting that freedom is not a personal right, the court also means that the freedom of the people exists only in limited mode or ways.An institutional Right: CoverageOne of the ways of categorizing rights is to differentiate between rights that serve a large group of people or organizations interest and right that serve the interest that serve narrowly noted with the holder of the right such as self-realization, autonomy, wellbeing of individuals or human dignity, and autonomy (identified as a personal right) (Paul 916). This difference explains the statement that the freedom of political communication is not a personal right, but it very dimensions the freedom of political communication falls into latter prior category. It is created ad directed to protect a larger interest group, the protection of representative as the court has directed, particular organizations of that type of government noted in the information contained in the constitution. Therefore, the freedom protects communication that allows voters in the federal elections and constitutional referenda to take part in a true choice with a chance to gain an appreciation of the alternative and that ensures that the federal executives should be responsible to the federal parliament (Dahlgren 150).The freedom of political communication hence depends on a very specific justification that is institutional in nature rather than personal. This facet of the doctrine seems to have made the Australian courts come to a decision that the above category of political communication is very small. Because the law depicts that the current political communication only includes the policies and the laws of the federal parliament, the conduct of the members of parliament of Australia and the political affairs of the nation that are related to federal affairs. However, I will address; that conclusion is not attuned with the freedom’s basic justification (Chesterman 10). In the early cases, the reporting of freedom political communication is always described in rather fake terms government and political matters or such similar concept or largely described. Since Lange, there has not been any authoritative High court statement on the concern or issue but the lower courts in the country decisions have always avoided the question of coverage by finding that all the legislation in questions is considered valid as appropriate and reasonable regulation. Nevertheless, the main trust of Lange was to confine the freedom by reference the constitution text and abide with the conservative approach, there is a discernable trend towards narrowing the coverage of freedom to another level so that the state and its people could understand the doctrine behind this law. The following are the examples of such cases in Australia;In Levy vs. Victoria, decided just after the Lange, the two high Court Justices who addressed the case found that disapproval against a state law preventing duck hunting had no importance for the responsible and representative government by the federal parliament. This finding was obtained from a previous majority position that the freedom would cover discussions of all the nation’s political issue or matters.In Brown v Classification Review Board, a big representation of a full court of the federal court of Australia noted that a censored students article advocating shoplifting as well as containing critique of entrepreneurship or capitalism would not bear any type of choice that a reader would make at the federal election and thus, contained no relevant political information or message (Blackshield, Anthony, and George 23).In John Fairfax Publication Pty limited v Attorney-General (NSW), the court in New south Wales court of appeal evaluated the legislation recurring certain levels of appeals to be held into the public domain or in front for the camera. The popular or the majority eventually concluded that the role of the attorney general of the state is to start appeals that bring legislation within the scope of freedom and in this consideration, the case is infrequent exception to the narrowing trend experienced in the country. However, in the judgment made by the majority it was evident that the tendency to define political communication was narrowly represented. In the course of its reasoning, the majority stated that, the behavior of the courts is not, of itself, a manifestation of all the provisions connecting to representative government upon which the freedom of political communication is based.New Classes of Political CommunicationThe idea of political communication therefore calls for a new and more generous definition. The redrawing of the limits should be helped by the underlying judgment of freedom of political communication, by consideration of the kind of communication must be protected in order for the organizations or institutions protected by the freedom to operate properly. Considered in this view, there are at least two classes of communication that could be added in the concept of political communication. Each of the classes would extend the concept further as currently drawn and in some cases, would expand the concept intensely.a) Explicitly Political CommunicationThis category can be evaluated or termed as explicitly political communication. According to Robert Bork; the developer of this category, his attempt to confine the coverage of freedom of speech under the first amendment:The category of the protected speech should only consist of speech concerned with governmental personnel, behavior, policy, whether the governmental unit used is legislative, administrative, executive or judicial. Explicitly political speech is a type of speech that concerns how we are governed, and the categories therefore incorporate a big range of criticism, propaganda, and evaluation (Timothy 400).What differentiates this type of speech is that it is substantively concentrating about the government. This is a unique starting point for the Australian freedom, since these issues are clearly relevant to the voter’s choice in the countries election and the other organizations or institutions protected by the freedom. Of course, given that the degree of freedom only protects given federal institutions of responsible government, Bork’s class would be modified to cover communication about the policy, personnel and behavior of the federal executive and parliament or about the referendum procedures. In most cases, this category only covers the country’s laws, referenda, and policies of the government as well as that of the opposition parties as well as the business of the federal parliament and the public conduct of the members of parliament of Australia (Macnamara, Jim, and Kenning 7).The acceptance this category would extend the exposure of the freedom at least to contemplate on the political beliefs of the Member of Parliament, raised by the Hanson case. The class ought to extend to some discussion of the conduct of the courts, the issue concerned in Fairfax. For the reasons, I state that, despite the fact that the courts are not themselves institution protected by freedom of political communication, sometimes discussions of courts reflect the policy of the federal government and the state of the law of the country. At very least, discussions about the operations of the federal courts of Australia, the appointment of the judges as well as the interpretation of the federal status should amount to the discussion of the behavior of the federal government must be determined so that the institutions can be able to understand the freedom of political communication (McNair 12).b) Potential subjects of Government ActionThe first class might be taken to exclude issues that are not the subject of existing regulations and laws or the current attention in the federal government and parliament, but which might become the subject of the policy and law in the future (Communication under the Australian Constitution 168). On this perspective, the freedom would not be able to cover discussion of matters like amending the Australian flag, redesigning the national service, reintroducing the country’s death penalty.In my view, the distinction between the two classes is rather hard to come to a conclusion since the fact that some matters are not currently the subject of some of the actions hence might show satisfaction with status quo or represent a failure to escalate the need for government action. On either case, the failure to make a policy proposal or to consider taking action will always reveal the nature of governmental behavior rather than address the issues that arise because of misinterpretation of freedom of political communication. The courts should understand that individual influence of the law is great hence; the government via the judges should consider defining the worth of the law rather than demising it.In the event, the discussion of matters before they reach the political agenda has intrinsic values. A voter who can understand more issue concerning freedom of political communication especially the most important and complex issues is likely to develop the best judgment of voters to be exercised. This is because; the voters have the right to understand and to be treated well when it comes to the law (freedom of political communication) hence the high court should consider taking into account the reality that the law is in place and cases that come with its analysis should be treated with much interest like other cases based on constitutional understanding (Stone 668). Therefore, to make issues clear, I suggest that we should recognize that the freedom of political communication covers a second class of communication; communications about matters that could become of interest to the federal policy or law or in the same manner the subject of the federal government action. This will help prevent the courts from assuming the freedom of political communication as a subordinate law rather than an affirmative law.
ConclusionThe theoretical confusion that this paper’s argument has raised is rather disappointing. The confusion can be considered the inevitable results of the compromise struck in the Lange whereby the freedom of political communication was retained, despite waning judicial support evident, but in a confined way. I have also argued that the revised doctrine indicates a misplaced confidence in the power of constitutional structure and text. In this paper, I addressed the consequences that might arise from the statement that the freedom of political communication is not a personal right: that it covers only the communication that is explicitly about the federal politics, which it serves institutional values rather that the entire nation’s or country’s constitutional rights. According to the manner, that high court of Australia handles, the issues arising from freedom of political communication, it is evident that the high court’s limits executive and federal legislative powers. I have challenged all the three conclusions by arguing that, even in a state of accepting that the freedom is not personal right, it covers a large range of communication and may depend on how the high court develops of creates its understanding of representative government. The better side of the argument is that the high court should value the autonomy. Further, it should be understood that the reason for having this law was to have a direct application of the common law. These findings are potentially significant for the future modeling of the freedom of political communication. Although the high courts are currently viewing the law in a narrow dimension, it should consistent with the principles of extensive protection of freedom of political communication.
Works Cited
Blackshield, Anthony, and George Williams. Australian Constitutional Law and Theory: Commentary and Materials. Federation Pr, 2010.
Chesterman, Michael R. Freedom of speech in Australian law: a delicate plant. Dartmouth Publishing Company, 2000.
Dahlgren, Peter. “The Internet, public spheres, and political communication: Dispersion and deliberation.” Political communication 22.2 (2005): 147-162.
Jones, Paul. “Australian cross-media ownership rules and freedom of political communication.” UNSWLJ 28 (2005): 916.
Jones, T. “Freedom of Political Communication in Australia”(1996).” ICLQ 45: 392.
Jones, Timothy H. “Freedom of Political Communication in Australia.”International and Comparative Law Quarterly 45.02 (1996): 392-401.
Macnamara, Jim, and Gail Kenning. “E-electioneering 2010: Trends in social media use in Australian political communication.” Media International Australia, Incorporating Culture & Policy 139 (2011): 7.
McNair, Brian. An introduction to political communication. Taylor & Francis, 2011.
Stone, Adrienne. “Lange, Levy and the Direction of the Freedom of Political Communication under the Australian Constitution’(1998).” University of New South Wales Law Journal 21: 117.
Stone, Adrienne. “Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication, The.” Melb. UL Rev. 23 (1999): 668.
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