The High Court’s decision in Unions NSW vs New South Wales is one of the most significant decisions for democracy and human rights in Australian history.
It’s on par with the 1951 decision which quashed the Communist Party Dissolution Bill.
It reveals a High Court inching – slowly, reluctantly, unhappily – towards a full-blown recognition of the human right to freedom of speech and freedom of association: the sort of uncompromising liberties expressly found in United States’ First Amendment.
The decision was released just before the Christmas break. The High Court found that the New South Wales ban on organisations donating to political parties and third party political campaigning were invalid, as they violated the constitution’s implied freedom of political communication.
I wrote about the NSW laws in The Drum in February 2012. They were a disgraceful and transparent manipulation of the electoral system designed to cripple the Labor Party and its union-centred funding model.
Of course, like all disgraceful and transparent manipulations of the electoral system, they were dressed up in woolly sentiments about enhancing democracy and reducing corruption.
It is a rare law that can unite in opposition the union movement, the Institute of Public Affairs, and environmental groups (the law was particularly damaging for federated bodies like the Wilderness Society).
But it’s an even rarer law that can inspire the High Court to trigger its free speech veto.
In a series of cases in the 1990s the High Court discovered a ‘freedom of political communication’ buried (‘implied’) deep within the Australian constitution.
Of course, there are no words in the constitution that say any such thing, but in 1992 the High Court decided the freedom was in there.
The court’s reasoning went like this. The Australian Constitution is a democratic constitution. A democracy is predicated on the free flow of communication about political issues. Therefore the document is predicated on the existence of some form of freedom to talk about politics – a freedom of political communication.
But, as the High Court has always at pains to say since, that freedom is not a general right to freedom of speech for individuals. It’s not like the First Amendment. No, it’s about protecting political communication – and political communication alone – from legislative interference. There’s nothing in the Australian constitution to allow citizens to sound off on everything willy-nilly.
Over the past two decades, the court has kept its free speech lid screwed on pretty tight. In recent years it has declined to protect the speech of a group of sidewalk preachers in Adelaide, the Islamist Sheikh Haron, and Lex Wotton, one of the Palm Island rioters.
They’re probably worried where this whole implied freedoms thing will lead.
And rightly so. The court’s foray into the political philosophy of democracy is embarrassingly underdeveloped. Our constitution isn’t just a constitution for a democracy. It is a constitution for a liberal democracy – a country where free and morally autonomous individuals mutually consent to democratic government.
And that implies that those free individuals have rights as free individuals. Australian citizens are not just conduits for electoral debate. Adrienne Stone of Melbourne Law School makes this argument here. As she writes, there is a plausible – I would say fundamental and intrinsic – relationship between personal individual autonomy and liberal democracy. The former is the foundation of the latter.
If the High Court were to recognise this relationship, then the limited freedom of political communication could be transformed into a broader right to freedom of speech.
The constitution doesn’t only imply electoral democracy. It implies individual liberty.
Twenty years ago the judiciary committed itself to divining political philosophy between the lines of the constitution. Perhaps it should not have started down this path. But now that it has, it should go where the path leads.
The Unions NSW case suggests they might be doing so. It is remarkable for a number of reasons.
First, the court has decided that the freedom of political communication applies to the states as well. That’s a big deal. The previously strict bounds of the freedom are being pushed out.
The US Supreme Court only started imposing the First Amendment on state laws in the 1920s. Indeed, the First Amendment only really became ‘activated’ in the twentieth century. It had to grow into what it is today. Australian free speech rights are embryonic – but they’re heading in the same direction.
Second, the court recognised that money can be speech. The way we spend our money is sometimes a form of political expression. This apparently horrifies many people on the left. But it is obviously true. It takes money to buy a T-shirt with a political slogan on it. It takes money to publish a book. It takes money to host a website. To ban the money is to restrain the speech that money was to bring about.
The intuition that money and speech are related is why things as disparate as the proposed secondary boycott laws and the ban on David Hicks profiting from his memoirs are equally objectionable. They limit speech by regulating its financial side.
Finally, and most interestingly, the High Court’s decision quietly suggested something very important, even revolutionary: corporations have as much right to speech as anybody else.
Of course corporations are not people. Corporate personhood is just a legal construct to facilitate contracts and lawsuits. Stop hyperventilating.
But corporations are made of people.
And just because people get together to form organisations doesn’t mean they lose their rights once they have. As the Unions NSW case suggests, businesses, unions and non-profit groups have much in common. They are all voluntarily formed by individuals to achieve a collective goal. All legitimately participate in political life.
This is one of the reasons that the US Supreme Court is coming around to an understanding that there is no clear, coherent distinction between ‘commercial speech’ and regular speech.
Of course, Americans have a rich body of case law explaining the extent and limits of the First Amendment. Australia’s free speech corpus is fragmented and arbitrary, and cripplingly limited by the High Court’s reluctance to follow its own logic where that logic leads.
So it’s still not totally clear what our freedom of political communication actually means. But after the Unions NSW case, we know that, whatever it means, it means a great deal.