The Proposed Defence of Freedom of Political Communication.
46 The defendants submit that it is fairly arguable that communications concerning the regulation of animal welfare are protected by the implied freedom of communication with respect to government and political matters. In support of this proposition, they rely upon the dicta of Kirby J (in dissent) in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 281 to 282. Set out below is that part of Kirby J's judgment that was reproduced by the defendants in their written submissions :-
The regulation of animal welfare within Australia is generally a responsibility of state parliaments and courts. … The parliaments of the states are provided for in the federal Constitution. Ultimately, they now draw their authority from that Constitution. The states are part of the "indissoluble Federal Commonwealth". The federal Constitution appears to contemplate that state parliaments, by analogy with the federal parliament, will be representative of the people of the state and democratically elected. No other view would be compatible with the exceptional powers afforded to the parliaments of the states in relation to the composition of the senate.
….. broadcasting of ideas about government or politics relevant to the activities of the federal or of a state parliament would fall within the principle expressed in Lange .
47 The defendants characterise the communication of the photographs and film by the defendants to Animal Liberation NSW as matters concerning the regulation of animal welfare. It is further submitted that the regulation of animal welfare is an issue that was already in existence in the proceedings before the application to amend. The first proposition may be self-evident, however the second proposition once again refuses to acknowledge that the plaintiff has only ever taken proceedings for the tort of trespass. There is no aspect of the plaintiff's pleadings up to the present time, nor is there any aspect of the defendants' pleadings prior to the application to amend, that puts in issue the regulation of animal welfare generally or pigs in particular.
48 The High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 held that there existed an implied freedom of political communication but that this entitlement is not freestanding or absolute and extends only so far as is necessary to give effect to those provisions of the Constitution that prescribe the federal system of responsible government. Further, the Court held that the implied freedom will not invalidate a law enacted to satisfy some other legitimate end, provided the law is compatible with the maintenance of the constitutionally prescribed system of government and the law is reasonably appropriate and adapted, or proportional to that end.
49 The first hurdle in the way of the defendants' argument is the absence of authority in support of the proposition that the communications between the defendants and Animal Liberation NSW are capable of coming within the scope of the principle expressed in Lange, as expounded by Kirby J. in Lenah Game Meats.
50 The latter case involved an application for interlocutory injunctive relief in order to restrain the ABC from distributing, publishing, copying or broadcasting a video of the applicant's activities in its possum meat processing plant in Tasmania. The video had been obtained by unknown persons who had unlawfully entered onto the premises and passed the film to Animal Liberation Ltd. That organisation subsequently supplied a copy of the film to the ABC. To the extent that a trespass had been committed, the ABC was not complicit in any illegality or impropriety.
51 The High Court determined that an interlocutory injunction was not available in circumstances where there was no serious question to be tried (there being no recognised tort of invasion of privacy available to corporate entities) and therefore no right to final relief. Apart from Kirby J, only Callinan J and Gleeson CJ touched on the subject of the implied freedom of communication. Callinan J expressly disapproved of any extension to a principle with which he fundamentally disagreed, albeit recognising that its existence was established in Lange. Gleeson CJ noted at [20] that :-
The Constitution's protection of freedom of political communication, for example, precludes the curtailment of such freedom by the exercise of legislative or executive power. It restricts lawmaking power and executive action. And, because the common law of Australia conforms to the Constitution, it has an important role in the formulation of common law principle. But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case, to be given such weight as to a court seems fit.
52 The following extract from Kirby J's judgment, only part of which is set out in the defendants' written submissions and reproduced at [46] above, places his Honour's comments in their appropriate context :-
The regulation of animal welfare within Australia is generally a responsibility of State parliaments and courts. On the other hand, the appellant, as a corporation established under federal law, has powers and responsibilities that extend to facilitating political and governmental discourse throughout the Commonwealth . Common experience suggests that, in Australia, many of the subjects of such discourse extend across State borders. Modern media of communications have reinforced nationwide discussion of matters of general political concern. The parliaments of the States are provided for in the federal Constitution. Ultimately, they now draw their authority from that Constitution. The States are part of the "indissoluble Federal Commonwealth". The federal Constitution appears to contemplate that State parliaments, by analogy with the Federal Parliament, will be representative of the people of the State and democratically elected. No other view would be compatible with the exceptional powers afforded to the parliaments of the States in relation to the composition of the Senate. Moreover, the respondent is engaged in an export business and that business would be damaged by the broadcast of the videotape restrained by the injunction.
In these circumstances, and in respect of the activities of the appellant in this case, I would be prepared to accept, for the purposes of the present appeal, that broadcasting of ideas about government or politics relevant to the activities of the Federal Parliament or of a State parliament would fall within the principle expressed in Lange .
However, this principle does not uphold an inflexible rule. Australian law does not embrace absolutes in this matter. Many regulatory laws, federal and State, continue to operate in ways that are compatible with the representative democracy established by the Constitution. Restrictions, imposed by law, for limited purposes (even where they may incidentally diminish completely uninhibited discussion of issues of government or politics) may yet be compatible with the Constitution. It is only if the law in question is inconsistent with the intended operation of the system of government created by the Constitution that the implied constitutional prohibition has effect.
Conclusion: no invalid law : There is nothing in the general language of the Tasmanian legislation, conferring on the Supreme Court the power to grant interlocutory injunctions, that is inconsistent with the representative democracy created by, or implied in, the Constitution. Nor is this power itself incompatible with the representative democracy created by the Constitution. To the contrary, the power is a feature of that democracy.
Nor, in my view, is the provision of relief by way of interlocutory injunction to restrain the use of information obtained illegally by a trespasser, where such use would be unconscionable, incompatible with the principle in Lange . That principle does not establish a rule expelling all legal restraints. Neither in what this Court said in Lange , nor in what it did there or in Levy v Victoria , is there any support for such an extreme position. It is not one appropriate to the text of, or implications derived from, the Constitution. It is not one compatible with the protection of other values (such as individual reputation) upheld during the entire operation of the Constitution to date. It would not be compatible with the recognition, in statements of fundamental human rights, of values which sometimes compete with free expression (including defence of reputation and privacy) It would be incompatible with the approach taken in other representative democracies similar to our own. (citations omitted and italics not appearing in original) [197] - [201]
53 Further, at [220], Kirby J noted that "this was a matter of federal concern .. because the product involved was wholly exported and the appellant is the national broadcaster, established by federal law with national functions."
54 To the extent that Kirby J. expressed a view in relation to the application of the implied freedom of political communication to matters pertaining to animal welfare, it was a view that was confined to the facts of the particular case. Most importantly, it was a view formulated on the basis that both of the parties to the proceedings were engaged in activities at a federal level. That is patently not the position with respect to the defendants. The evidence before the Court is silent with respect to the activities of the plaintiff, that is, whether the plaintiff exports its products.
55 Furthermore, even acknowledging the theoretical availability of the power to grant injunctive relief in the circumstances of Lenah Game Meats, his Honour was of the view that the type of relief sought by the plaintiff in this case is not inconsistent or incompatible with representative democracy, rather it is a feature of it. His Honour expressly recognised that the grant of an injunction to restrain the use of information such as photographs and film obtained as a result of a trespass, where that use would be unconscionable, was not in any way incompatible with the implied freedom of communication with respect to political matters.
56 In short, Kirby J's judgment in Lenah Game Meats does not support the defendants' argument on this limb of the proposed defence. The proposed amendment would, in my view, be futile.