McCloy case shows why courts can not be relied on to protect free speech

Last week, the High Court handed down a significant judgment which determined whether various limitations on political donations breached the implied right of political communication in the Australian Constitution.

The case was brought forward by property developer and former Newcastle lord mayer Jeff McCloy, who was the target of a compulsory examination by the controversial anti-corruption agency, ICAC.

This time, ICAC won. However, as Chris Merritt reported in The Australian, there is a second appeal coming up in November.

In this case, the Court was specifically asked to consider whether provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) that:

were impermissible burdens on freedom of communication on government and political matters.

All judges accepted the position that the Australian Constitution contains unwritten rights. Likewise, the judges accepted that the laws did indirectly undermine freedom of political communication.

However, almost as unanimously, the court rejected that the laws were not justified, saying the laws were aimed at a legitimate end of preventing “corruption and undue influence”. Even the “perception of corruption” was enough to justify the restrictive laws.

It’s reminiscent of an argument made by Chris Berg in February 2012 in response to broader campaign finance reforms in NSW, where he said:

… there is a deeper philosophical disagreement here, and it concerns how we understand “democratic” political debate. Broadly there are two models.

The first imagines democratic debate as a free-for-all… The second model argues that governments should “manage” the debate.

Which is exactly what is happening. Following the lead of the New South Wales parliament, the High Court decided that any law which targets corruption is permitted as it “is imposed in pursuit of an end which is appropriately characterised within our system of representative and responsible government as compelling”. In other words, if the law says someone is bad, then “democracy” is better off without them.

That the Court agreed that the NSW laws burdened political communication and yet still, almost unanimously, decided they were constitutional, shows the formulation is all wrong. Only Justice Nettle found that banning donations from specific categories of people, who work in a legitimate line of business, was unconstitutional (he did, of course, accept the constitutionality of the donation caps).

In constructing this implied right, the Court inappropriately gave itself the power to determine what does and does not constitute free speech. In doing so, they have demonstrated why it the people of Australia through parliament, and not the courts, who have to bear the responsibility of repealing these laws, and ensuring they are not implemented in the first place.


The decision can be found at the High Court of Australia website here.

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