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Thompson, Sam --- "Wotton v Queensland (2012) 285 ALR 1" [2012] UTasLawRw 18; (2012) 31(2) University of Tasmania Law Review 168


Wotton v Queensland (2012) 285 ALR 1

I. INTRODUCTION

In Wotton v Queensland,[1] (‘Wotton’) the High Court reaffirmed the existence of an implied freedom of political communication, while finding that it did not protect the plaintiff’s speech. The existence of such a freedom was first canvassed by Murphy J in a series of dissents beginning in the late 1970s,[2] with the modern formulation articulated in Lange v Australian Broadcasting Corporation (‘Lange’).[3] In Wotton, the seven judges unanimously rejected the plaintiff’s challenge to conditions relating to his parole. Six of the judges (French CJ, Gummow, Hayne, Crennan and Bell JJ, and Kiefel J in a separate concurring judgment) applied the two-limb Lange test, finding that while the plaintiff had satisfied the first limb, the law was reasonably appropriate and adapted to its purpose. Justice Heydon also rejected the challenge, in a judgment that cast doubt on the existence of an implied freedom of political communication and, particularly, the Lange test. Although eschewing some issues, Wotton is significant in that it confirms the language relevant to the Lange test and partly illuminates another corner of the relatively barren jurisprudence on the scope of the freedom of political communication.

II. THE PLAINTIFF’S CONVICTION AND PAROLE CONDITIONS

A. Facts

In 2004 an Aboriginal man, Mulrunji Doomadgee, died in police custody in circumstances that suggested police misconduct. As a result of this, around 300 people, including the plaintiff, participated in a riot. The plaintiff, Lex Wotton, was convicted of rioting contrary to the Criminal Code 1899 (Qld) ss 61 and 65. The plaintiff was sentenced to six years imprisonment, with a non-parole period of two years. Mr Wotton was later paroled, with the Parole Board attaching certain conditions. Although on parole, sch 4 of the Corrective Services Act 2006 (Qld) (‘CSA’) defined Mr Wotton as a prisoner. The impugned conditions limited the plaintiff’s right to speak to the media. Mr Wotton alleged that the conditions imposed on him as part of his parole infringed on the constitutionally protected freedom of political communication.

B. Parole Conditions

The case first concerned three conditions that were attached pursuant to s 200(2) of the CSA. Section 200(2) allows the attachment of conditions that the Parole Board ‘reasonably considers...necessary:

to ensure the prisoner’s good conduct; or

to stop the prisoner committing an offence.’

The conditions attached to the plaintiff prevented him from, inter alia:

(t) attending public meetings on Palm Island without the prior approval of his corrective services officer;

(u) speaking to or having any interaction whatsoever with the media; and

(v) receiving, from the media, any direct or indirect payment or benefit to him or through members of his family, or any agent or spokesperson, or through any other person.

After Mr Wotton applied for special leave of appeal to the High Court, the Parole Board removed condition (u) from his parole order. Accordingly, the Court did not consider the validity of this condition.

Also at issue was s 132(1)(a), which, subject to certain conditions, prohibits a person from interviewing a prisoner, or obtaining a record of interview.[4] Both parties conceded that the conditions imposed under s 200(2) relied on s 132(1). Section 132(1) provides that a person must not, without permission:

(a) interview a prisoner, or obtain a written or recorded statement from a prisoner, whether the prisoner is inside or outside a corrective services facility; or

(b) photograph or attempt to photograph-

(i) a prisoner inside a corrective services facility; or

(ii) a part of a corrective services facilities.

III. THE DECISION

A. Judgment of French CJ, Gummow, Hayne, Crennan and Bell JJ

1 Foundations of the Freedom of Political Communication

The majority began by outlining the foundations of the freedom. Sections 7 and 24 of the Constitution require, respectively, that the Senate and House of Representatives be elected by the people. In order for the people to be effective electors, the franchise and freedom of political communication must be protected. The freedom was described in Lange as ‘an indispensable incident’ of the constitutionally prescribed system of government.[5] As such, the freedom acts as a limit on the powers of the Commonwealth and the states.[6]

The High Court accepted the Commonwealth’s submission that whether or not the Parole Board or Chief Executive’s particular exercise of power is valid was a question of administrative review.[7] That is, if the provisions of the CSA itself were valid, any question of whether the administrative decisions should be read down or are ultra vires (such as conditions (t) and (v)) was a question answerable by judicial review. The constitutional issue therefore could narrowly be framed as whether s 132(1) of the CSA was inconsistent with the implied freedom of political communication.

2 The Test in Lange

The High Court in Lange established two questions that are relevant to the implied freedom of political communication. First, does ‘the law effectively burden freedom of communication about government or political matters.’[8] If so, the second question is enlivened: is ‘the law nonetheless reasonably appropriate and adapted to serve a legitimate end in a matter compatible with the maintenance of the constitutionally prescribed system of government...’[9] If the law were reasonably adapted and appropriate it would not be inconsistent with the implied freedom of political communication.

In answering the first question, the Court considered the scope of government or political matters. Because the executive governments of the Commonwealth and the states are involved in Aboriginal and indigenous affairs, including policing and governance, public discussion of these matters is within the scope of the first limb of Lange.[10] The Court considered that the burden imposed by s 132(1)(a) was the obligation to obtain the permission of the Chief Executive to interview a person on parole.[11] Similarly, the burden imposed by s 200(2) was Mr Wotton’s adherence to the conditions imposed by the Parole Board.[12] The first limb of the Lange test having been satisfied, the High Court proceeded to consider the second limb.

In respect of the second limb, the Court distinguished between laws that incidentally restrict political communication and laws that directly and substantially restrict political communication.[13] The majority held that the impugned sections fell into the former category, and therefore are ‘more readily seen to satisfy the second Lange question’.[14]

In considering whether CSA s 132(1)(a) served a ‘legitimate end’, the Court considered s 3. Section 3(1) provided that the Act’s purpose was ‘community safety and crime prevention through the humane containment, supervision and rehabilitation of offenders.’ The discretion afforded to the Chief Executive in respect of imposing parole conditions was said to act as a protection of Mr Wotton’s freedom of political communication, rather than a restriction on it. Furthermore, the majority noted that the Chief Executive’s discretion is subject to and fettered by the Judicial Review Act 1991 (Qld). The majority appeared to criticise the plaintiff for considering s 132(1)(a) in isolation from the discretion and judicial review.[15]

In considering whether s 200(2) served a ‘legitimate end’, the Court considered the language of s 200(2), which allows conditions (such as (t) and (v)) to be imposed if the Parole Board ‘reasonably considers them necessary:...

to ensure the prisoner’s good conduct; or

to stop the prisoner committing an offence.’

The use of the phrase ‘reasonably considers them necessary’ ensured that any condition was ‘reasonably appropriate and adapted’.[16] The Parole Board and the Supreme Court (in reviewing the Parole Board’s decisions) would therefore be obliged to consider any limits on political communication in imposing and reviewing parole conditions.

The Court held that the validity of conditions (t) and (v) depended on whether the Parole Board exceeded its power under s 200(2) in imposing the two conditions. The majority said that this was determinable by judicial review.[17] Because Mr Wotton had not applied for permission to attend a public meeting on Palm Island (which was relevant to condition (t)) or deal with the media (which was relevant to condition (v)), their validity was not in question.

Having answered the second Lange question in the affirmative, neither ss 132(1)(a) nor 200(2) were invalid. The validity of conditions (t) and (v) depended on whether the Parole Board’s decision exceeded its authority conferred by s 200(2). Given that this was subject to judicial review (which the plaintiff had not sought), their validity remains uncertain.

B. Judgment of Heydon J

1 The Test for Invalidity

Heydon J noted, with some degree of disapproval, that although Lange consisted of a single unanimous judgment, the existence of an implied freedom of political communication has never been the subject of a referendum or plebiscite, nor ‘fundamentally challenged’.[18] It

must therefore be applied, at least until the unlikely event of a successful challenge to its correctness, or until, perhaps, a particular exception to the stare decisis doctrine in constitutional cases operates.[19]

His Honour then proceeded, perhaps begrudgingly, to apply the two Lange limbs.

Queensland’s submission that making communication more difficult does not, ipso facto, create a burden[20] was accepted on the basis that to find otherwise would result in near-complete reliance on the second Lange limb. This, according to Heydon J, would be undesirable because what is reasonably appropriate and adapted embraces subjective considerations. Heydon J opined that the formulation of the first Lange limb is ‘too favourable to persons challenging their validity.’[21] His Honour proposed that the approach used in assessing the validity of laws against s 92 of the Constitution is preferable. That is, inquiring whether the burden is ‘a real impediment’. The approach asks whether the burden on speech damages the ‘institutions of representative and responsible government created by the Constitution.’[22]

2 Applying the Test

Justice Heydon proceeded to apply his reformulated test to conditions (t) and (v). His Honour considered that condition (t), while preventing Mr Wotton from making communications in certain locations, did not realistically threaten this freedom. ‘The restriction on the place of communication does not prevent the substance of what [the plaintiff wanted] to communicate from being communicated.’[23] Condition (v), while preventing the receipt of payment for communications about political and governmental matters, did ‘not prevent the making of unpaid communications about those matters.’[24] The same communications could be made: the only difference was that Mr Wotton could not be paid for making them. In respect of s 132(1)(a), Heydon J found this not to be invalid. Although the effect of s 132(1)(a) may be to limit the means by which communications may be made or received, it ‘did not create practical impediments’ to communications.[25] Accordingly, Heydon J found there to be no impermissible burden on political communication.[26]

C. Judgment of Kiefel J

Kiefel J agreed with the majority’s finding that the constitutional validity of conditions (t) and (v) was not at issue because it would arise in judicial review.[27] Her Honour’s separate concurring judgment is perhaps the clearest and most succinct of the three judgments. Kiefel J began by outlining the nature of the freedom, and affirmed the test in Lange.[28]

1 The Test in Lange

Kiefel J, agreeing with the majority, held that the first Lange limb was satisfied: the impugned provisions were a burden on the plaintiff’s political communication. Having satisfied the first limb, an impugned law will nonetheless be valid only if it (1) has a legitimate end; and (2) its burden on political communication is reasonably appropriate and adapted to that legitimate end. In respect of this second requirement, Kiefel J approved of McHugh J’s view in Coleman v Power that regard must be had to both the end of the law as well as its means of achieving that end.[29] This may involve inquiring whether there were ‘other, less drastic means’ by which the end of the law could be achieved,[30] and is akin to proportionality.[31]

Citing two foreign cases,[32] ‘control and discipline’ of prisoners was said to be necessary. The need for this control and discipline extended to parole because rehabilitation may not be complete and prisoners’ conduct ‘may have repercussions for other prisoners and the prison system.’[33] This need may be derived from the notoriety of prisoners such as Mr Wotton. While Pell v Procunier concerned a prisoner still incarcerated, Kiefel J held its considerations still to be relevant to paroled prisoners.[34] Section 132’s restriction is directed to the method of obtaining information, rather than to obtaining information itself. Furthermore, it is subject to the discretion of the Chief Executive, whose discretion in turn is subject to judicial review.[35]

Kiefel J held that the burden on political communication was not ‘excessive’ and therefore s 132 was reasonably appropriate and adapted.[36] Similarly, the language of s 200(2) imposes a requirement of proportionality, and judicial review would therefore require that consideration be given to the effect on the plaintiff’s speech.[37]

IV. SIGNIFICANCE OF THE DECISION

A. Previous Jurisprudence

The majority’s decision in Wotton affirms the Court’s existing jurisprudence. All of their Honours acknowledged that the freedom is not a personal right: it is merely a check on government power. The Court, with the exception of Heydon J, approved of and applied the Lange test, as modified in Coleman v Power.

B. The Test for Invalidity

The confirmation of the language of the test is in itself significant, as is Kiefel J’s explicit likening of ‘reasonably appropriate and adapted’ to proportionality.[38] While an emphasis on proportionality was put relatively recently in Roach v Electoral Commissioner,[39] Rowe v Electoral Commissioner [40] and Hogan v Hinch,[41] the Court did not appear to go so far as to adopt proportionality as the test.[42] The Court did confirm that a law is more ‘readily seen to satisfy the second Lange question’ (and thus be saved from invalidity), if its burden is merely incidental rather than direct.[43] The burden created by the impugned provisions was held to be merely incidental, and therefore the provisions were not subjected to detailed consideration in respect of whether they were reasonably appropriate and adapted.[44] The scrutiny applied by the majority and, albeit to a lesser extent, Kiefel J, appears to have been minimal.

C. Matters not Considered

1 Queensland’s Legitimate Interest

The majority were satisfied that the legitimate ends of s 132(1)(a) were ‘sufficiently identified’ by the ends in s 3.[45] While these ends were noted, how the conditions served these ends remains unanswered.[46] Kiefel J cited two cases that articulated how restrictions on prisoners’ communications furthered a legitimate interest; however these involved incarcerated rather than paroled prisoners.[47] The brevity of the explanation may indicate a readiness to significantly defer to Parliament in determining whether a law is appropriate and adapted.[48] This is unsatisfactory: the raison d’etre of the Lange test is for courts to protect the constitutionally prescribed system of representative government by determining whether or not an impugned law is reasonably adapted and appropriate. Allowing Parliament significant latitude in deciding this circumvents the Lange test and the freedom itself. While laws that are merely incidental burdens on political communication, such as the impugned provisions here, do not require ‘close scrutiny’ and ‘compelling justification,’[49] it appears that the scrutiny applied by the Court in Wotton was minimal.[50] Furthermore, the Court avoided articulating as a rule the acceptable level of deference, and whether deference is to be made to Parliament (in relation to s 200(2)) or the executive (in relation to conditions (t) and (v)).

2 Section 200(2) and Constitutional Avoidance

The Court avoided considering the constitutionality of the conditions imposed under s 200(2). Practising constitutional avoidance, [51] the Court eschewed the implied right ground for determining the validity of s 200(2) in favour of a non-constitutional (in this case, statutory interpretation and judicial review) ground. Because the plaintiff had not sought and been refused permission from the Chief Executive, the validity of such a refusal was not considered. Consequently, Wotton does not state whether a refusal of permission by the Chief Executive would be invalid.

While the Court stated that the conditions’ validity was determinable by judicial review, this is an unsatisfactory outcome for both governments and citizens. Governments may find it undesirable because the validity of provisions such as s 200(2) and orders made pursuant to them is uncertain: judicial review will not provide broad and binding authority on validity. This is arguably contrary to the Court’s intention in Lange for the freedom to act as a clear check on government power,[52] and as more than a mere factor relevant in judicial review. The decision is undesirable for citizens such as the plaintiff because judicial review is difficult to access, particularly for prisoners.[53] Furthermore, judicial review is of limited application to other citizens insofar as it considers only the executive decision (conditions (t) and (v)) rather than the legislative grant of power (s 200(2)) and is heard in a state Supreme Court rather than the High Court.[54]

V. CONCLUSION

Wotton is the latest High Court case to confirm the existence of a constitutionally protected freedom of political communication, and the manifestation of this as the two-limb Lange test. The Court eschewed making broad constitutional statements, instead deciding this case on narrow grounds. The case does not state whether the particular conditions imposed on parolees are valid, instead holding the conditions to be amenable to judicial review. Wotton therefore does not substantially aid in defining the boundaries of the freedom of political communication. To some degree, it is a missed opportunity, with some of the plaintiffs’ arguments unmentioned in the Court’s judgments.[55] On the other hand, the case evinces the Court’s willingness to defer significantly to the executive on the question of proportionality.

Sam Thompson[∗]


[1] (2012) 285 ALR 1.

[2] See, eg, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71; (1977) 139 CLR 54, 88, cited in Wotton [39] (Heydon J).

[3] [1997] HCA 25; (1997) 189 CLR 520, 599-560.

[4] These exceptions were prescribed in s 132(2): eg, communications with the prisoner’s lawyer or the ombudsman.

[5] [1997] HCA 25; (1997) 189 CLR 520, 599-560, cited in Aid/Watch Incorporated v Federal Commissioner of Taxation (2010) 241 CLR 439, 556 [44]. The language used in Lange was modified by the Court in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 50 [93] (McHugh J).

[6] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 77 [195], cited in Wotton v Queensland (2012) 285 ALR 1, [20].

[7] Transcript of Proceedings, Wotton v Queensland [2011] HCATrans 189 (2 August 2011) 3790 (S J Gageler SC).

[8] Hogan v Hinch (2011) 243 CLR 506, 542 [47] (French CJ), 555-556 [94]-[97] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), cited in Wotton v Queensland (2012) 285 ALR 125, [25].

[9] Ibid.

[10] Wotton [26]-[27] (French CJ, Gummow, Hayne, Crennan and Bell JJ), [79] (Kiefel J).

[11] Ibid [28].

[12] Ibid [29].

[13] See also Hogan v Hinch (2011) 243 CLR 506, 555-556 [95] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), cited in Wotton [78] (Kiefel J).

[14] Wotton [30].

[15] Ibid [19].

[16] Ibid [32].

[17] Ibid [22].

[18] Ibid [40].

[19] Ibid.

[20] State of Queensland, ‘Submissions on Behalf of the First Defendant’ in Wotton v Queensland, S314/2010, 26 July 2011, 6 n 20.

[21] Wotton [54].

[22] Ibid.

[23] Ibid [59].

[24] Ibid [60].

[25] Ibid [65].

[26] Ibid [66].

[27] Ibid [74] (Kiefel J), [24] French CJ, Gummow, Hayne, Crennan and Bell JJ.

[28] Ibid [77].

[29] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 50 [93], cited in Wotton [80].

[30] Lange, 568, cited in Wotton [82].

[31] Wotton [77].

[32] R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 127 (Lord Steyn); Pell v Procunier [1974] USSC 141; 417 US 817, 822 (1974).

[33] Wotton [86].

[34] Ibid [88].

[35] Ibid [88].

[36] Ibid [90].

[37] Ibid [91].

[38] Ibid [77].

[39] (2007) 233 CLR 162, 199 [85] (Gummow, Kirby and Crennan JJ).

[40] [2016] FCA 1081; (2010) 243 CLR 1, 121 [387] (Kiefel J).

[41] (2011) 243 CLR 506, 549 [72] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), citing Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 199-200 [39].

[42] This may be contrasted to the jurisprudence on s 92 of the Constitution, where ‘abridged proportionality’ is the test. See, eg, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 471-473 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ); Betfair Pty Ltd v Western Australia [2008] HCA 11; (2008) 234 CLR 418, 477 [102]-[103], 479 [110] (Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ). See also Gonzalo Villalta Puig, The High Court of Australia and s 92 of the Constitution (Lawbook, 2008) 56-57.

[43] Wotton [30] (French CJ, Gummow, Hayne, Crennan and Bell JJ). See also [78] (Kiefel J).

[44] Ibid.

[45] Ibid [31].

[46] For the plaintiff’s position, see Lex Wotton, ‘Plaintiff’s Corrected Outline of Submissions’ in Wotton v Queensland, S314/2010, 2 August 2011, [45]-[49].

[47] For a discussion of these cases, see Lex Wotton, ‘Plaintiff’s Reply Submissions’ in Wotton v Queensland, S314/ 2010, 12 July 2011, [13]. See also Transcript of Proceedings, Wotton v Queensland [2011] HCATrans 189 (2 August 2011) 1660 (R Merkel QC).

[48] Deference to Parliament was disapproved of by Kirby J in Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 262-263; but appeared to receive the approval of McHugh J in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 48 [87]. See generally, Dan Meagher, ‘The Protection of Political Communication Under the Australian Constitution [2005] UNSWLawJl 4; (2005) 28(1) University of New South Wales Law Journal 30.

[49] Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 200 [40] (Gleeson CJ), 262 [271] (Kirby J).

[50] The scrutiny applied to s 132(1) in particular appears to have been minimal.

[51] Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ [1998] University of Melbourne Law Research Series 1, 10.

[52] Lange, 560; Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 193, cited in Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181, 251-252 [203]-[204] (Kirby J).

[53] Alisa Wicks, ‘Due Process and Parole in Queensland: The Case of Lex Wotton’ [2010] IndigLawB 33; (2010) 7(20) Indigenous Law Bulletin 13, 14; Transcript of Proceedings, Wotton v Queensland [2011] HCATrans 189 (2 August 2011) 2414 (R Merkel QC). See also Bennett v Human Rights and Equal Opportunity Commission [2003] FCA 1433; (2003) 134 FCR 334, [101]-[103], cited in Lex Wotton, ‘Plaintiff’s Corrected Outline of Submissions’ in Wotton v Queensland, S314/2010, 2 August 2011, [56].

[54] Judicial Review Act 1991 (Qld) s 19. Equivalent provisions exist for all states and territories.

[55] See, eg, above, n 47 and 53.

[∗] Final year BEc-LLB (Hons) student at the University of Tasmania, and co-editor of the University of Tasmania Law Review for 2012. Thanks to Dr Brendan Gogarty for his guidance.


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