Lange vs Australian Corporation

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LWZ203 Constitutional Law Q(i) Do you believe that Lange vs Australian Podcasting Corporation (1997) 189 CLR 520 was correctly decided? The Constitution contains few express rights and freedoms. Amongst OECD countries, Australia and Israel are countries whose constitution does not have an explicit Bill of Rights. The High Court of Australia has recognized that the structure and the text of the constitution , including the system of “representative and responsible government” may give rise to implied freedoms. An implied Freedom of Speech has been identified on several discussions, including Nationwide News v Wills[1] and Australian Capital Television v Commonwealth [2]. (ACTV). This implied freedom was further extended in Theofanous v Herald & Weekly Times[3] and Stephens v West Australian Newspapers Ltd[4]. From the cases above, the High Court reasoned that a system of representative government, as prescribed by the constitution, give rise to an implication that it is necessary to discuss political and government affairs. In the ACTV case, the court further recognized the existence of an implied freedom of speech. The Justices, however, arrived at this implication off free speech in different ways This gave uncertainty to the scope of this implied freedom. The Theofanous case and the Stephens case explored the outer limits of this implied freedom. The defendant in the Theofanous case argued that any views which the plaintiff deemed critical was protected by the implied freedom to discuss political and government matters. The High Court accepted the publication fell within the concept of political discussion. Deane J, stated (at R4) “It is sufficient to say “political discussion” includes discussions of the conduct, policies or fitness for office or government, political parties, public officers and those seeking pubic office”. The High Court majority argued that this broader implied freedom is based on the priniciples of representative democracy. In Lange[5], the High Court took the opportunity to reconsider the divergent perspectives that had emerged in the previous free speech discussions. In Lange, the High Court formulated a two-stage test on whether a law violated the freedom. The second test which calls for balancing of competing public interests. The reformulated law based on Lange was applied in Levy[6]. The High Court found that regulations were necessary to protect the safety of the public and thus trumped freedom of political speech. The consensus that the High Court reached with Lange were short lived. In Coleman v Power[7], Coleman was charged with using “insulting words”, assault towards police officer and was convicted under the Vagrancy Act of QLD. S7(1)(d). Coleman argued he was using words that implied political communications. If that was the case, then he would be protected under the implied right of freedom of political communication. The High Court found the conviction under S7(1)(d) to be unlawful by the was still conceited for assaulting the policeman. The High Court accepted that communication allegedly corruption of police ere protected and that political communication can include “insults”. The High Courts decision by a 4:3 marking showed that there were two views about reasonable limits on freedom of political communication.

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