Dulloo, Romaan --- "Contextualising Steward J In Libertyworks Inc V Commonwealth Of Australia: Its' Intended Audience And Impact On The Implied Freedom" [2021] UNSWLawJlStuS 26; (2021) UNSWLJ Student Series No 21-26

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CONTEXTUALISING STEWARD J IN LIBERTYWORKS INC V COMMONWEALTH OF AUSTRALIA: ITS’ INTENDED AUDIENCE AND IMPACT ON THE IMPLIED FREEDOM

ROMAAN DULLOO

I INTRODUCTION

With the greatest of respect, it is arguable that the implied freedom does not exist. It may not be sufficiently supported by the text, structure and context of the Constitution and, because of the continued division within this Court about the application of the doctrine of structured proportionality, it is still not yet settled law.^[1]

In common law jurisdictions such as the United States, it is uncontroversial to suggest that appellate court judgments are influenced by ideology and politics. Such is the normative force of politics on the United States judiciary, it is the decisions that do not adhere to partisan lines which draw significant attention and commentary from external observers.^[2] However, in the Australian context, debate is hotly contested over the intersection between ideology, partisan politics and judicial decision making. There has been much scholarly work conducted into the politicisation of the High Court and judgments in the Australian context. However, direct attention has been limited regarding the audiences to whom High Court Justices are speaking when they are authoring judgments perceived to be ideologically or politically driven and the potential impact of such judgments on constitutional law and reform. The need for academic attention on this space has been ignited by the recent concurring judgment authored by Justice Simon Steward in LibertyWorks Inc v Commonwealth of Australia^[3] (‘LibertyWorks’) which created shockwaves in the Australian legal community by once again bringing back into question the existence of the implied freedom of political communication established by the High Court in Australian Capital Television v Commonwealth.^[4]

This essay seeks to fill this gap in the literature by analysing Steward J’s judgment through an examination of the motivations which informed it and attempting to identify its intended audience. In order to conduct this analysis, this essay will first interrogate how this judgment sits within the conceptions of the Australian judicial function in a constitutional context. Second, it will seek to position Steward J’s judgment within a historical context and in comparison with other judgments perceived as politically motivated from the Australian High Court and the United States Supreme Court. Last, it will discuss the impact this judgment could have on the continuing existence of and jurisprudence regarding the scope and existence of the implied freedom of political communication. An examination of these areas reveals that Steward J’s judgment sits in a growing line of conservative dissents to the implied freedom, and amongst a number of notable judgments which are both strategic and political in regard to the audience they are directed towards. Steward J’s judgment could prove to be a historically pivotal one in the Australian rights protection framework, by paving the way for a challenge to the implied freedom of political communication which has been a fixture of our constitutional framework for nearly thirty years.

II THE AUSTRALIAN JUDICIAL FUNCTION

Neither party challenged the existence of the implied freedom in this special case. For the disposition of this proceeding, it is therefore not appropriate to deny its application here. It should, if required, be a matter for full argument on another occasion.^[5]

A The Judge’s Role?

In the Australian constitutional framework, judges play an important role in the process of determining constitutional meaning through their own methodologies for constitutional interpretation. However, to what extent a judge’s role extends beyond this in constitutional cases is debated upon by legal observers, politicians, scholars, and judges themselves. The manner by which the High Court and individual justices approach constitutional interpretation is inextricably linked with their own perceptions of their role.^[6] Current High Court Justice Stephen Gageler suggests that judges ought to approach to constitutional law and interpretation with the notion that the text is not determinative, but that ultimately they must interpret the constitutional tradition in a fashion that is meaningful to them and for their own time.^[7] Justice Michael Kirby, one of the most prominent High Court justices of the modern era, suggested that a judge’s role extended beyond simply running trials and deciding cases, but they had a role to play as ‘intellectual leader and citizen’.^[8] Chief Justice Sir Anthony Mason argues that courts ought to consider community values and the changing course of events when approaching matters of constitutional interpretation.^[9] By contrast, Justice Dyson Heydon suggested that ‘‘a key factor in the speedy and just resolution of the disputes is the disinterested application by the judge of known law drawn from existing legal sources independently of the personal beliefs of the judge’.’^[10] Heydon J’s perspective fits within a long tradition of conservative jurisprudence and attitude towards the role of the judge in Australia, most famously encapsulated by Sir Owen Dixon in his swearing in speech as Chief Justice when he stated that ‘there is no safer guide to judicial decisions in significant conflicts than a strict and complete legalism’.^[11] Leaving aside the irony of an extra judicial statement establishing the dominance of a firmly textualist approach to judicial decision making, these insights offered above by Kirby J, Mason J, Heydon J and Dixon J demarcate the opposing sides of one of the most meaningful debates regarding the role of the judge in Australian courts – one between ‘living constitutionalism’ and legalism. This debate between ‘living constitutionalism and ‘strict and complete legalism’ helps to frame the context in which Steward J’s judgment sits, and the judicial ideological which may have informed it.

B The Judge’s Audience?

Murray argues that the “precise audience for whom legal judgments are directed is indistinct.”^[12] She identifies a number of potential stakeholders to whom judgments may be addressed including litigants, the legal profession, judicial colleagues, and judges themselves.^[13] Murray suggests that judges are ‘typically cautious’ in public law judgments because it is perceived as risky for the judiciary to delve too far into the political sphere within their judgements.^[14] Lynch furthers this idea through a comparison of dissenting judgments in Australia and the United States, suggesting that the distance between the tone and style of Australian judgments and political discourse is larger than in a comparative jurisdiction like the United States.^[15] While this judicial norm applies to the vast majority of cases, it should be acknowledged that there are a number of notable judgments (which will be discussed below) that have thrown caution to the wind when it comes to intertwining the political and the judicial in judgments. Often these judgments concern fundamental rights, which aligns with the suggestion that centrality of the Bill of Rights in the American social and political discourse accounts for the prevalence of politically charged and geared judicial reasoning.^[16] However it is important to note that challenges to settled doctrine in the Australian context remain extremely difficult, something which Stephenson argues can be attributed to Australia’s ‘moderately rigid Constitution’ – a context which ‘weakens the normative basis for contestable judicial developments of the Constitution’.^[17] Within that context, it could be argued that should a judge wish to instigate a shift in constitutional interpretation or meaning, they may be better off speaking to a broader audience than just the parties affected by the matter at hand. By broadening the audience to whom judgments are authored, judges are able to extend the battle over judicial methodology and constitutional interpretation well into the future, as broadening the intended audience often coincides with writing judgments for the future as opposed to the present. These are the strategic ploys that have been utilised by High Court Justices (for example Kirby J) in previous cases in instances where they are aware that their perspective is not yet the dominant one or in the majority but has the scope to eventually become the established position sometime in the future as society and the composition of the High Court evolves.

The debate between differing judicial ideologies regarding constitutional interpretation is heavily influenced by political ideology and individual judicial attitudes. Given this reality, one must consider the intended audiences for judgments that seek to weigh in on this debate, such Steward J’s judgment in LibertyWorks. Lynch argues that appealing to an external audience can be a noted feature of a judicial opinion.^[18] Brown highlights an example of this in the case of Al-Kateb v Godwin^[19] where Kirby J’s dissent constituted a form of ‘symbolic political communication’ and paved the way for him to become ‘Australia’s foremost judicial proponent of a pro-rights approach to constitutional and statutory interpretation in the aftermath of the case.’^[20] From the same case, Murray notes McHugh J as an example of a judgment authored in part for the ‘loser’ where he wrote that ‘tragic as the position of the appellant certainly is, his appeal must be dismissed’.^[21]Although he is perceived to sit on the opposite end of the political spectrum, Steward J is situated in a similar position to what Kirby J had during his judicial tenure. Brown notes that Kirby J would emerge as ‘a frequent dissenter among an increasingly conservative group of judges’^[22], and similarly Steward J as of writing is the only sitting Justice on the High Court who has authored opposition to the existence of the implied freedom of political communication. Brown notes that Kirby J’s dissent played a role in igniting and supporting public advocacy about human rights in Australia.^[23] Considering Steward J’s lexical choices in his judgment^[24], it is not hard to imagine that he wishes for his judgment to be the catalyst for a similar push against the implied freedom of political communication moving forward. In the immediate aftermath of his decision, Steward’s judgment (most crucially his stated opposition to the existence of an implied freedom of political communication) was described as vindication for the conservatives who had pushed for his appointment to the Court in the first place.^[25] Notably, Pelly identifies that in his judgment Steward J is appealing for ‘others to join him’.^[26] The others to whom the article mentions may refer to a number of different stakeholders including but not limited to, conservative politicians, conservative thinktanks, strategic litigators, media outlets and perhaps even other judges who may join him on the High Court in the future. Critically, this is a set of stakeholders who no other judge in their judgments was addressing in LibertyWorks and helps to frame Steward J’s judgment by contrast, as an inherently political one.

III STRAYING FROM THE HERD: POLITICAL JUDGMENTS

I am not the only Justice of this Court who has been concerned about the implied freedom.^[27]

As discussed above, there is a strong judicial norm for judgments of the High Court to avoid any possible perception of ideological bias or potential link to a political motivation. Yet, as has also been established above, this is not a norm always adhered to by the Justices of the High Court. This section of the essay seeks to explore selected judgements that have conveyed a politically motivated tone and have spoken to political audiences as opposed to only the typical judicial audience (usually the parties of a case). By doing so, we can place Steward J’s judgment within a historical context of judgments that have preceded it, and potentially influenced it. Finally, to further the analysis of political tone and audience in appellate judgments, this section will interrogate perhaps the most prominent politically motivated jurist of recent times, Antonin Scalia of the United States Supreme Court.

While Steward J’s judgment has been discussed at length throughout, it is instructive to highlight the aspects of it which appear to be aimed at a political audience, influenced by prior judgments, and adopt a what ought to be considered a political tone. Steward J draws upon prior judgments from Dawson J who was the first High Court Justice to write in opposition to the implied freedom of political communication, arguing that “one of the virtues of representative government” was that no guarantee for freedom of speech is required.^[28] Steward J cites both Heydon J and Dixon CJ, amongst others to bolster his scepticisms of the implied freedom of political communication. He suggests that any implication of a freedom of speech or communication must be drawn from outside the Constitution, and in a way that is not consistent with established principles of interpretation.^[29] But what is more notable than the content of Steward’s judgment is that none of the parties in the case sought to bring forward any argument or submission which brought the existence of the implied freedom into question. This is a reality which Steward J explicitly acknowledges on multiple occasions in his judgment and states that it is not appropriate to deny the application of the freedom in this case because of this fact.^[30] As a result, Steward J’s judgment invites two key questions to be asked. First, to whom is this section of the judgment written for if not the parties directly affected by the case? Second, for what purpose has it been included within the judgment given it has no bearing upon the decision as noted by Steward J himself? To answer the first question, we can point to the stakeholders established by Murray and covered in section two of this essay. As for the motivation behind including a section discussing the existence of the implied freedom, it is evident that Steward J is seeking to invite a challenge to the implied freedom of political communication in a future case^[31] and is advocating against the existence of implications which he views as ‘not necessary or obviously having regard to the express provisions of the Constitution’.^[32]

In Monis v The Queen^[33] Heydon J sought to achieve similar outcomes to Steward J in LibertyWorks, by utilising rare invocations of literature and dramatic techniques to sow the seeds of an argument arguing against the existence of the implied freedom of political communication within the Australian Constitution.^[34] Appleby and Roberts note that the judgment ought to be considered a conscious and strategic use of dissent with distinctive stylistic elements for a High Court judgment.^[35] Heydon J’s judgment in Monis was not his first judgment to utilise an overtly political tone, as we can look to his judgment in Momcilovic v The Queen^[36] for a further example of such an approach. Another case which concerned human rights, in Momcilovic Heydon J’s dissent directly attacks the Victorian Attorney-General in an almost mocking tone.^[37] His judgments fit into an established pattern, which echoes his scholarly work, where we find an advocacy of his particular conception of judicial legitimacy and approach to constitutional and statutory interpretation.^[38] Monis represented the logical endpoint for Heydon J’s judicial journey which started with his famous speech ‘Judicial Activism and the Death of the Rule of Law’ in which he criticised the excesses of the Mason Court and the legal chaos he perceived was initiated by its brand of ‘judicial activism’. For Heydon, one of the most representative doctrines of this excess was the implied freedom of political communication, which was the subject of Heydon J’s parting shot as he departed the High Court. ^[39] In Monis Heydon J answered the questions posed by the case in two paragraphs, yet he chose to author a further six pages as a ‘final and strategic stand against the implied freedom of political communication’.^[40] Similarly, in LibertyWorks Steward J spends three pages advocating against the implied freedom after having already decided the relevant questions to deciding the matter at hand in the pages prior. Such an approach flies in the face of established conventions regarding the role of a judge. For example, Brennan CJ noted that ‘the judge’s role is to keep the ring, not enter the fight.’^[41] The discussion of the existence of the implied freedom is entirely unnecessary to resolving the questions raised by the case at hand and is included solely for the purpose of further a specific judicial agenda and methodology. Steward J explicitly references Heydon J’s judgment in Monis^[42] demonstrating the continuing impact of Heydon J’s judgment, and proof of the value of authoring judgments to be picked by judges in the future. Heydon J is cited alongside the judgment of Callinan J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd^[43], a case in which Callinan J becomes the first High Court judge to echo the initial concerns raised by Dawson J in Theophanous^[44]. What is unique about Callinan J’s judgment is that it does not explicitly address a political audience, but seeks to challenge accepted doctrine in a subtle, but powerful way. Callinan J starts off by acknowledging ‘the very experienced court’ which ‘unanimously put beyond doubt in Lange v Australian Broadcasting Corporation^[45]’ the ability to utilise the implied freedom of political communication in some defamation cases.^[46] After which, ‘with the greatest of respect’, he begins to completely undermine the entire principle and decision given by said court. Steward J’s judgment borrows some of the same language from Lenah Game Meats – with a similar goal of undermining settled doctrine.^[47] Heydon J’s judgment in Monis also mentions the same dissenting opinions of Dawson J and Callinan J^[48] - which highlights the existence of a consistent line of jurisprudence in opposition to the implied freedom of political communication for future judgments to draw upon by Justices who wish to further unsettle the doctrine moving forward.

As has been mentioned by scholars such as Lynch, the US Supreme Court has been the setting for a number of notable judgments which have spoken to political audiences and perceived as politically motivated. Perhaps the foremost author of such judgments, particularly from a conservative perspective, was Justice Antonin Scalia of the United States Supreme Court. Scalia J’s judgments in Planned Parenthood v Casey^[49] and Lawrence v Texas^[50] represented two politically informed and motivated judgments – once again in cases which focused on the protection of human rights. In Lawrence, Scalia J argued against the Supreme Court invalidating laws based on moral choices, suggesting state laws against bigamy, same-sex marriage, adult incest, bestiality amongst others would be called into question – if state laws against sodomy were deemed unconstitutional.^[51] In Casey he argued that abortion was not a liberty protected by the US Constitution because it was not mentioned in the Constitution and “the long standing traditions of American society have permitted it to be legally proscribed.”^[52] In both instances, what was most impactful about Scalia J’s writing, was not its immediate legal impact (as he was in dissent in both instances) but the fact that his judgments helped to contribute to a ‘fundamentalist doctrine about the US Constitution that has been a beacon to American conservatives in the law and politics for more than a generation’.^[53] Most notably, Scalia J’s judgments were not primarily directed towards the respective litigants of the cases in question but for the political audiences writ large that were vested in the outcome of those respective cases – a trait that Steward J’s judgment shares in common. Purcell states that Scalia J’s influence served to merge constitutional jurisprudence and practical politics, that he used abstract theories (for example his reasoning noted above in Lawrence) to serve political ends and to effectively advance the varied political, social, and cultural interests of post-Reagan Republican Party.^[54] While the Australian judicial and political context may be a far cry from the US context – judgments such as the one in LibertyWorks bear more than just a fleeting resemblance to those designed to push political and personal agendas in the US. Steward J’s judgment in LibertyWorks was one of his very first constitutional cases while on the court, and his first regarding the implied freedom of political communication. Should he continue to write in such a manner, he may be able to single-handedly contribute to a shift in the tone of the High Court moving forward.

All of these prior judgments are instructive because they serve to demonstrate that the ability to speak directly to a political audience is a powerful tool for judges. Judges can utilise this tool in a strategic and calculated fashion – furthering their own personal judicial and political ideologies. In one of his first major constitutional cases, Steward J has laid down the gauntlet for those willing to challenge the implied freedom’s existence. In doing so, he carries on the ideology of his conservative predecessors Dawson J, Callinan J and Heydon J. Whether he will have better success in removing the implied freedom than his ideological judicial ancestors remains to be seen.

IV IMPACT ON THE IMPLIED FREEDOM?

The continued division within this Court about the application of the doctrine of structured proportionality, it is still not yet settled law. The division within the Court over so important an issue may justify a reconsideration of the implication itself.^[55]

The 9^th of January 2039 marks the date of Justice Steward’s mandatory retirement – nearly twenty years in the future. His ability to influence the Court will last for several judicial cycles and even more electoral ones. Heydon J immediately prior to being appointed delivered a famous speech railing against ‘hero judges’, motivated by his desire for a conservative revival in judicial reasoning.^[56] By the end of his tenure, he was a quixotic figure, isolated and alone in his quest to return the court to what he perceived as its ‘proper role’.^[57] While Heydon J would ultimately drift from the Court’s centre to its fringes over the course of his tenure, Steward J has the opportunity to become its heartbeat over the coming years and an ideological successor to the judicial conservatives mentioned above. Upcoming retirements and a relatively popular conservative government could result a series of more conservative appointments to the High Court and with it, a renewed challenge to the implied freedom of political communication. It is likely that on the back of Steward J’s judgment the High Court will hear more cases related to the implied freedom in the coming years where litigants feel emboldened to mount constitutional challenges.^[58]

Moving forward, it is not only the mere existence which will be called into question but also the use of a structured proportionality approach to decide upon the limitations of the implied freedom. In the aftermath of Lange, the implied freedom of political communication is sourced from the notion that free political communication constitutes an ‘indispensable incident’ of ss 7 and 24 of the Australian Constitution which establish the concepts of representative and responsible government.^[59] However, the test for the implied freedom of political communication created by Lange has ‘been complicated by the High Court’s uneven embrace of a structured proportionality test’.^[60] Wesson noted in the aftermath of Unions NSW v New South Wales [No 2]^[61] that clarification regarding structured proportionality and step (3) of the Lange test ‘must await further High Court decisions’.^[62] LibertyWorks could have been a decision which established clarity on these uncertainties, however Steward J throughout his judgment hints at the continuation of division between the Court regarding the structured proportionality approach with both Gageler J and Gordon J expressing reservations about its use. In addition, Gageler J in Palmer v WA^[63] notes that relevant considerations are not properly considered by the consecutive inquiries into ‘suitability’ and ‘necessity’ as required by the structured proportionality test established by McCloy v New South Wales.^[64][65] In LibertyWorks Steward J states that the ongoing divide over how to legitimately limit the implied freedom may suggest that ‘the implied freedom cannot be adequately defined’.^[66] Steward J goes on to note that, ‘if the content of the implied freedom cannot even now be agreed upon, then, for my part, that may demonstrate it was never justified’.^[67] However, it remains true that a majority of the High Court utilises a test of structured proportionality to interpret implied freedom of political communication case law.^[68] Notably, in LibertyWorks the other new member of the Court, Justice Jacqueline Gleeson joined Kiefel CJ and Keane J in judgment, indicating her support for the use of the structured proportionality test.^[69] This suggests that in the short-term there remains a clear majority in favour of the structured proportionality approach, which will minimise any concerns about a ‘divided’ court. Wesson argues that while the appointment of Steward J creates some uncertainty, ‘the place of the doctrine in Australian constitutional law would seem to be relatively secure’.^[70]

Finally, it is worth mentioning that the debate over freedom of speech in the Australian context is also receiving greater attention on the back of a new inquiry by the Senate Legal and Constitutional Affairs Committee into a proposal to amend the Australian Constitution to include an express protection for freedom of expression has brought renewed attention to the debate over the constitutional enshrinement of human rights in Australia.^[71] There is a rich history of scholarly work on this topic, which has noted the comparative lack of attention paid to human rights in Australia’s constitutional development^[72], the existence of a ‘partial bill of rights’^[73], the clash between national security and rights^[74] and the difficulties associated with balancing free speech with other interests.^[75] Interestingly, the existence of an implied freedom of political communication has somewhat ironically often acted as a barrier to free speech advocates, with opponents of stronger free speech protections arguing that the existence of an implied freedom of political communication is sufficient. However, should judgments stemming from the High Court moving forward seek to further challenge the existence of the implied freedom of political communication in the vein of Steward J in LibertyWorks then it may help to invigorate the Australian free speech movement in order to ensure that in the absence of the implied freedom, Australians are able to have some enshrined protections for their rights to speech and expression. While the chances of a proposal such as this succeeding given Australia’s record of rejecting referendums remains slim in the status quo, it nonetheless presents another talking point within the constitutional rights protection discourse which must be monitored should the jurisprudence and commentary surrounding the implied freedom of political communication begin to shift in the aftermath of Steward J’s judgment in LibertyWorks as the consequences of this debate are significant within the context of Australia’s rights protection framework.

V CONCLUSION

In LibertyWorks Steward J managed to pen one of the most notable dissenting opinions in the Court’s recent history, despite actually being within the majority in regard to the actual case at hand. The judgment has reintroduced doubt over the implied freedom and labelled it as ‘tenuous’.^[76] Such is the explosive nature of the judgment; legal scholars may in the future look back at it as one of the major catalysts for a shift in discourse surrounding the implied freedom of political communication and free speech protection in Australia in general. This essay has sought to fill a gap in the existing literature relating to the intersection of judicial reasoning, judicial audiences and politics which has been largely left untouched by existing scholarly work. This analysis has been conducted largely within the scope of the implied freedom of political communication, but it is important to note that it has also highlighted the existence of such judgments in High Court cases related to rights protection cases which dealt with issues beyond just the implied freedom. It has sought to demonstrate the political nature and audience of this judgment by arguing that Steward J’s judgment went above and beyond the scope of the respective cases and submissions presented by the parties in the matter and clearly signalled Steward J’s intentions regarding the implied freedom of political communication for the years to come. It has done so by constructing an overview of the perceived role of a High Court Justice and the audiences whom they generally speak to with their judgments and by placing Steward J’s judgment within historical context and attempted to identify some of the sources which motivated it. The controversial judgment marks arguably the first time since Heydon J departed the bench, that a judgment has been aimed towards a political audience – aiming to inspire future litigation in the area.

Finally, this essay sought to prognosticate on the impact the judgment may have on the existence of the implied freedom of political communication moving forward. It has sought to contribute to the future discourse regarding free speech and political expression in Australia by framing the importance of Steward J’s judgment in LibertyWorks to this space and attempting to identify some of the potential consequences of it, in the short and long-term. As it currently sits, it remains to be seen whether the judgment will have its desired effect of undermining the implied freedom of political communication, or whether Steward J will continue to author judgments whose audiences extend beyond the traditional stakeholders in any given constitutional law case.

VI BIBLIOGRAPHY

A Articles/Books/Reports

Ananian-Welsh, Rebecca and Nicola McGarrity. ‘National Security: A Hegemonic Constitutional Value?’ in Rosalind Dixon (ed), Australian Constitutional Values (Bloomsbury Publishing Plc) 267

Appleby, Gabrielle and Heather Roberts, ‘He Who Would Not Be Muzzled: Justice Heydon’s Last Dissent in Monis v The Queen (2013)’ in Andrew Lynch (ed) Great Australian Dissents (Cambridge University Press) 335

Brown, A J, ‘When Liberty Divides: Judicial Cleavages and their Consequences in Al-Kateb v Godwin (2004) in Andrew Lynch (ed) Great Australian Dissents (Cambridge University Press) 311

Dixon, Rosalind, ‘An Australian (partial) bill of rights’ (2016) 14(1) International Journal of Constitutional Law 80

Dixon, Sir Owen, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21^st Aprol, 1952’ in Judge Woniarski (ed) Jesting Pilate and other Papers and Addresses (Law Book, 1965) 24

Gageler, Stephen, ‘Beyond The Text: A Vision of the Structure and Function of the Constitution’ (2009) 32 Australian Bar Review 138

Heydon, Dyson, ‘Judicial Activism and the Death of the Rule of Law’ [2004] OtaLawRw 2; (2004) 10 Otago Law Review 493

Lynch, Andrew, ‘Introduction – What Makes a Dissent Great?’ in Andrew Lynch (ed) Great Australian Dissents (Cambridge University Press)

Magnusson, Roger S, ‘Freedom of Speech in Australian defamation law: Ridicule, satire and other challenges’ (2001) 9 Torts Law Journal 269

Mason, Sir Anthony, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ [1986] FedLawRw 1; (1986-87) 16 Federal Law Review 1

Murray, Sarah, ‘A letter to the loser? Public law and the empowering role of the judgment’ (2014) 23(4) Griffith Law Review 545

Purcell Jr, Edward A., Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press, 2020)

Stephenson, Scott, ‘The Challenge for Courts in a Moderately Rigid Constitution’ (2021) 44(3) Melbourne University Law Review (advance) 1

Wesson, Murray, ‘The Reception of Structured Proportionality in Australian Constitutional Law’ 49(3) Federal Law Review (advance) 1

Wesson, Murray, ‘Unions NSW v New South Wales [No 2}: Unresolved issues for the implied freedom of political communication’ (2019) 23 Media and Arts Law Review 93

Williams, George, 'Human Rights and the Second Century of the Australian Constitution' [2001] UNSWLawJl 63; (2001) 24(3) University of New South Wales Law Journal 782

B Cases

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Australian Capital Television v Commonwealth (1992) 177 CLR 106

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

Lawrence v. Texas[2003] USSC 4776; , 539 U.S. 558 (2003)

LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18

McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178

Momcilovic v The Queen (2011) 245 CLR 1

Monis v The Queen (2013) 249 CLR 92

Palmer v Western Australia [2021] HCA 5

Planned Parenthood of Southeastern Pa. v. Casey[1992] USSC 112; , 505 U.S. 833 (1992)

Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104

Unions NSW v New South Wales [No 2] HCA 1

C Other

Brennan, Sir Gerard, ‘The Role of The Judge’ (Speech, National Judicial Orientation Programme, 13 October 1996) <https://www.hcourt.gov.au/assets/publications/speeches/former justices/brennanj/brennanj_wollong.htm>

Kettle, Martin, ‘Antonin Scalia: the judge whose conservatism shaped America’ The Guardian (online, 15 February 2016) <https://www.theguardian.com/commentisfree/2016/feb/14/antonin-scalia-america-supreme-court-judge-us-constitution>

Kirby, Michael, ‘The Judge’s Role’ (Speech, International Seminar on Human Rights, May 1998) <https://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-michael-kirby>

Pelly, Michael, ‘A High Court Steward for conservatives’ Australian Financial Review (online, 17 June 2021) <https://www.afr.com/companies/professional-services/a-high-court-steward-for-conservatives-20210603-p57xxh>

Shear, Michael D., ‘Gorsuch, Conservative Favorite Appointed by Trump, Leads Way on Landmark Decision’, The New York Times (online, 15 June 2020) <https://www.nytimes.com/2020/06/15/us/politics/gorsuch-supreme-court-gay-transgender-rights.html>

Williams, George, ‘Nothing admirable about weak press, speech protections’, The Australian (online, 5 July 2021) <https://www.theaustralian.com.au/commentary/nothing-admirable-about-weak-press-speech-protections/news-story/d10c6f2ecbfc6830862304b4eab2f544>

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^[1] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [249] (Steward J) (emphasis added).

^[2] Michael D. Shear, ‘Gorsuch, Conservative Favorite Appointed by Trump, Leads Way on Landmark Decision’, The New York Times (online, 15 June 2020) <https://www.nytimes.com/2020/06/15/us/politics/gorsuch-supreme-court-gay-transgender-rights.html>.

^[3] [2021] HCA 18.

^[4] (1992) 177 CLR 106.

^[5] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [304] (Steward J) (emphasis added).

^[6] Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience’ [1986] FedLawRw 1; (1986-87) 16 Federal Law Review 1, 2.

^[7] Stephen Gageler, ‘Beyond The Text: A Vision of the Structure and Function of the Constitution’ (2009) 32 Australian Bar Review 138, 156.

^[8] Michael Kirby, ‘The Judge’s Role’ (Speech, International Seminar on Human Rights, May 1998) <https://www.hcourt.gov.au/publications/speeches/former/speeches-by-the-hon-michael-kirby>.

^[9] Mason (n 6) 5.

^[10] Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ [2004] OtaLawRw 2; (2004) 10 Otago Law Review 493, 495.

^[11] Sir Owen Dixon, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21^st April, 1952’ in Judge Woniarski (ed) Jesting Pilate and other Papers and Addresses (Law Book, 1965) 245, 247.

^[12] Sarah Murray, ‘A letter to the loser? Public law and the empowering role of the judgment’ (2014) 23(4) Griffith Law Review 545, 546.

^[13] Ibid.

^[14] Ibid 554.

^[15] Andrew Lynch, ‘Introduction – What Makes a Dissent Great?’ in Andrew Lynch (ed) Great Australian Dissents (Cambridge University Press) 1, 17.

^[16] Ibid.

^[17] Scott Stephenson, ‘The Challenge for Courts in a Moderately Rigid Constitution’ (2021) 44(3) Melbourne University Law Review (advance) 20.

^[18] Ibid 8.

^[19] [2004] HCA 37; (2004) 219 CLR 562.

^[20] A J Brown, ‘When Liberty Divides: Judicial Cleavages and their Consequences in Al-Kateb v Godwin (2004) in Andrew Lynch (ed) Great Australian Dissents (Cambridge University Press) 311, 320.

^[21] Murray (n 12) 558.

^[22] Brown (n 20) 321.

^[23] Ibid 322.

^[24] At both [249] and [304] Steward J mentions the possibility of a full argument on the implied freedom of political communication being heard by the High Court in the future.

^[25] Michael Pelly, ‘A High Court Steward for conservatives’ Australian Financial Review (online, 17 June 2021) <https://www.afr.com/companies/professional-services/a-high-court-steward-for-conservatives-20210603-p57xxh>.

^[26] Ibid.

^[27] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [303] (Steward J).

^[28] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, [193-194] (‘Theophanous’).

^[29] Ibid 298.

^[30] Ibid 304.

^[31] Pelly (n 23).

^[32] Theophanous [194].

^[33] (2013) 249 CLR 92 (‘Monis’).

^[34] Gabrielle Appleby and Heather Roberts, ‘He Who Would Not Be Muzzled: Justice Heydon’s Last Dissent in Monis v The Queen (2013)’ in Andrew Lynch (ed) Great Australian Dissents (Cambridge University Press) 335.

^[35] Ibid 336.

^[36] (2011) 245 CLR 1 (‘Momcilovic’).

^[37] Ibid [389].

^[38] Lynch (n 15) 9.

^[39] Appleby and Roberts (n 34) 342.

^[40] Ibid 338.

^[41] Sir Gerard Brennan, ‘The Role of The Judge’ (Speech, National Judicial Orientation Programme, 13 October 1996) <https://www.hcourt.gov.au/assets/publications/speeches/former justices/brennanj/brennanj_wollong.htm>.

^[42] Monis v The Queen (2013) 249 CLR 92 (‘Monis’).

^[43] (2001) 208 CLR 199 (‘Lenah Game Meats’).

^[44] [1994] HCA 46; (1994) 182 CLR 104.

^[45] [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’).

^[46] Lenah Game Meats (n 39) [338].

^[47] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [249].

^[48] Monis v The Queen (2013) 249 CLR 92, [243].

^[49] Planned Parenthood of Southeastern Pa. v. Casey, [1992] USSC 112; 505 U.S. 833 (1992) (‘Casey’).

^[50] Lawrence v. Texas, [2003] USSC 4776; 539 U.S. 558 (2003) (‘Lawrence’).

^[51] Ibid 590.

^[52] Casey (n 40) 980.

^[53] Martin Kettle, ‘Antonin Scalia: the judge whose conservatism shaped America’ The Guardian (online, 15 February 2016) < https://www.theguardian.com/commentisfree/2016/feb/14/antonin-scalia-america-supreme-court-judge-us-constitution>.

^[54] Edward A. Purcell Jr., Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press, 2020) 273-274.

^[55] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [249] (Steward J) (emphasis added).

^[56] Appleby and Roberts (n 34) 343.

^[57] Ibid 345.

^[58] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [304].

^[59] Lange (n 45), 559-62 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

^[60] Murray Wesson, ‘Unions NSW v New South Wales [No 2}: Unresolved issues for the implied freedom of political communication’ (2019) 23 Media and Arts Law Review 93, 99.

^[61] [2019] HCA 1.

^[62] Wesson (n 60) 101.

^[63] Palmer v Western Australia [2021] HCA 5 (‘Palmer’).

^[64] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178.

^[65] Palmer (n 62) [143].

^[66] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [249].

^[67] Ibid [298].

^[68] Murray Wesson, ‘The Reception of Structured Proportionality in Australian Constitutional Law’ (2021) 49(3) Federal Law Review (advance) 1, 1-2.

^[69] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [48].

^[70] Wesson (n 68) 2.

^[71] See for e.g., George Williams. ‘Nothing admirable about weak press, speech protections’ The Australian (online, 5 July 2021) < https://www.theaustralian.com.au/commentary/nothing-admirable-about-weak-press-speech-protections/news-story/d10c6f2ecbfc6830862304b4eab2f544> or Pelly (n 25).

^[72] George Williams, 'Human Rights and the Second Century of the Australian Constitution' [2001] UNSWLawJl 63; (2001) 24(3) University of New South Wales Law Journal 782.

^[73] Rosalind Dixon, ‘An Australian (partial) bill of rights’ (2016) 14(1) International Journal of Constitutional Law 80.

^[74] Rebecca Ananian-Welsh and Nicola McGarrity. ‘National Security: A Hegemonic Constitutional Value?’ in Rosalind Dixon (ed), Australian Constitutional Values (Bloomsbury Publishing Plc) 267.

^[75] Roger S Magnusson, ‘Freedom of Speech in Australian defamation law: Ridicule, satire and other challenges’ (2001) 9 Torts Law Journal 269, 277.

^[76] LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18, [298].