LAWS 2008 Constitutional Law

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Question:

Useful Cases

Australian Capital Television Pty Ltd. and New South Wales [1992] HCA45

Theophanous V Herald and Weekly Times Ltd (1994), 182 CLR 104.

Stephens v West Australian Newspapers (1994), 180 CLR 211

McCloy and New South Wales [2015] HCA34

The Government Neatness Act was passed by the Cth legislature. This Act is intended to improve standards in Cth Parliament.

The new Act stipulates that male members of the Cth Parliament must all have the same crew cut, no head coverings, and that beards, moustaches, and other hairstyles are prohibited.

You have three clients: one from Judaic, one Sikh, and one member the Islamic faith. They are all new members to parliament and are curious about the new provisions as well as how they can be verified.

The Citizens Protection Act was passed by VIC. This law allows public protests on matters of public concern provided that citizens adhere to the laws or directives made by or for the Chief Commissioner.

A protest meeting has been held in front Vic’s Parliament House regarding state railway reforms. The Chief commissioner has asked that it be closed before mid-day so that there are no traffic delays due to people travelling to large sporting events.

Thomas Jefferson Bloggs is your client and believes that this is a way to reduce media attention. He asks for your opinion as to whether you can challenge this act as a violation of implied freedom.

Pyro Manicac was charged under the Environment Protection Act (ACT) with burning an Aus Flag made from eucalyptus leafs in the foyer at Parliament House.

Pyro lit the flag in protest of government actions and asked for your opinion on whether his actions should be protected under the protection of political communications.

How would you answer if Pyro participated in a smoking ceremony

Rupert Fox, newspaper proprietor and donor to political party candidates, is represented by you.

He is challenging the Election Funding Act 2018 (“Cth”), which bars newspaper owners from making donations to political parties.

Does this prohibition violate the implied freedom to political communications?

Kevin Rudd, PM in 2008, stated that Bill Henson’s photographic exhibition of pictures of naked children was revolting and lacked artistic merit.

Imagine Bill Henson entering a portrait in The Bald Archives depicting Kevin Rudd.

A control freak who has no ability to delegate

Indecisive

No artistic discernment

A potty stomach

Incompetent

The minister of Arts orders the AFP to search the exhibition and seize the painting, in accordance with sedition laws.

Do you think this violates the freedom of political communication

Answer:

Implied Freedom Of Political Communication

Q1.

These provisions are difficult to follow for the three religious people in Parliament who are Judith and Islamic.

Because of their culture, religion, and beliefs, they must wear covers on their heads and have mustaches and beards.

This is against religious freedom as government cannot interfere in people’s religious beliefs.

Because the country is secular, the three individuals can challenge the constitution of this act at the court.

The Constitution of 1901 stipulates that the Commonwealth Government may not interfere with the religious practices of those who live in the state.

Section 116 in the Australian Constitution states that the Commonwealth government can’t pass any law that prohibits any religion from being freely exercised.

Section 116 doesn’t guarantee absolute religious freedom. This means that laws can still be passed to balance religion and rights.

Kruger (1997) 190 CLR 1.125. The high court ruled that law should be made so that religious freedom rights can be exercised by individuals.

The High Court unanimously decided that it is not necessary to take any action for a violation of constitutional rights.

The court also states that the government must not create rules to prohibit the free exercise or religious observance of religion.

It ensures that law is able to be written for civil unity and to achieve a legitimate goal.

Q2.

The Citizen Protection Act provides that citizens can protest in public interest as long as they abide by laws and police directives.

Bloggs says that the real purpose of these directions to stop protests at noon is to reduce media attention.

This Court held that Section 7, 64 and 128 of the Vagrancy Act allow individuals the right to discuss political and government issues.

Coleman v Power (2004) 220 CLR 1 the court decided that Section 7(1) (Vagrancy Act) is invalid for infringing the implied freedom of communication in political terms.

If the section is invalid, the court asked for consideration of those provisions which would permit the exception of the rarest appellant.

If individuals feel that their rights to communicate political information have been violated, they can request implied freedom.

This means that people are entitled to peacefully and non-violently protest government decisions.

Lange v Australian Broadcasting Corporation (1997 189 CLR 522), the court held that implied freedom can’t be prevented from being applied to political communication in Commonwealth matters.

According to the High Court, defenses regarding qualified privilege are compatible for communication in political areas.

ABC has accused Lange of defaming her under the pretext that she had given false information.

Political communication is when freedom of speech and public protest are balanced.

This implies that citizens have the right and freedom to peacefully protest railway reforms.

It says that law must be compatible with freedom in regard to political communication which is an essential system for Commonwealth Government.

The High Court in Australian Capital Television Pty Ltd. and New South Wales v Commonwealth [1992] HCA45, ruled that laws can be invalid if they violate implied freedoms regarding political communication in Australia.

The court found that political communication is essential for Australia’s representative system.

Bloggs is free to contest this action for violating his implied freedom regarding political communication.

Q3.

As a sign of protest, he has burned the flag at Foyer of Parliament House.

The Environment Protection Act 1997 regulates conservation, rehabilitation and protection to enhance the environment.

Section 3 D (1) of the act states that everyone must share responsibility towards the environment. This includes understanding and protecting the environment.

A section 108 (1) (a), states that any authorized officer may detain or arrest anyone if the individual has violated terms and guidelines of the act.

Maniac was accused of burning the flag, which is made from the eucalyptus tree, and the authorized officer has the authority to arrest him.

Tearing down the flag shows disrespect towards the nation and lack of concern for its environment.

The implied freedom of political communication guarantees that people can protest against government actions as long as they don’t endanger the security or religious sentiments of the nation.

Section 128 (1)(a) provides that the Supreme Court can issue an order for violation of environmental laws when it is satisfied that the individual concerned has violated the laws or guidelines laid out in the act.

This means that Maniac cannot appeal against implied freedom of political communication if it is proved that he has burned the flag.

Nationwide News Pty Ltd. v Wills [1992] HCA46, the court ruled that the authority does not have the power to restrict the freedom of expression.

Freedom in regard to expression means that citizens have the right to question and critique government laws and actions.

It is important to understand that these words are intended to discredit members in their exercise of power.

It suggests that justice is not conducted on the basis of arbitrary power, but rather on the provisions in the Constitution.

It stops the government from making arbitrarily made laws or preventing the implementation and enjoyment of human rights.

Australia has recognized freedom of expression as essential for its representative nation. Therefore, the government can not arrest protestors provided they are not in violation of security or law.

Maniac, a protestor, has set fire to the eucalyptus tree flag. This is contrary to environmental laws.

Individuals have the right of peaceful protest, and to organize meetings and procesions without causing any disruption to the internal order or stability.

Q4.

Section 46 of the Election Funding Act 2018 makes it unlawful for an individual or group to donate funds to political party if they aren’t enrolled in local government, federal elections, or both.

Section 47 (1)(a) states that it is not legal for an individual to make any other indirect contributions than money to political parties.

Section 48 (1) provides that it is against the law for individuals, candidates or parties to make political donations to candidates and groups of people who have not been backed or supported by any political party.

Fox is entitled to challenge the Election Funding Act.

This act stipulates that any individual can donate money to political parties as long as they comply with the laws.

Theophanous, Herald and Weekly Times Ltd (1994), 182 CLR 104, raised the question of whether publication freedom is restricted by implied freedom regarding communication in political terms.

The Constitution allows individuals to voice their opinions on both political and government matters.

According to the court, the implied freedom to communicate with political parties is not restricted to discussions. People also have the rights to protest and give funds.

Implied freedom for political communication is the ability to discuss and protest government actions.

McCloy, New South Wales [2015] HCA34 states that any restrictions regarding funds political parties may have with candidates to cover the costs of political communications is a limitation on freedom. This means that the candidate or party may need to pay the difference.

Division 4A regarding Section 6 of Election Funding, Expiture, and Disclosures Act 1982 is invalid if it burdens implied foredoom with respect to political or governmental communication.

The special cases costs will be borne by the plaintiffs, it was stated.

In the event that Fox is prohibited from donating funds to political parties, the party will have to pay the cost of the lack of funds.

Fox has been forbidden from donating money to political rights, which is against his right to participate as a political communicator.

This is his right to challenge the act, as long as he donates funds to legitimate political parties.

Q5.

The minister of Arts directed AFP to seize the paintings as per the Australian sedition laws.

According to Section 24 of 1914’s Crimes Act, sedition can be described as the intent to bring contempt or hate to the Sovereign or encourage dissatisfaction towards the Constitution and the Government, thrill the subjects of Her Majesty, or promote hostility or ill feelings among different classes.

This shows that Commonwealth Territory residents are forbidden from acting in a way that might harm the government and the laws of their territory.

Stephens v West Australian Newspapers (1994), 184 CLR 211, it was ruled that newspapers owners are entitled to publish whatever information they deem necessary.

Plaintiffs in this case believe that three articles published by the newspaper were defamatory.

But, it was stated that citizens have the right of expression regarding political and governmental matters.

The right to publish information about voting and elections is also protected by them.

The court held that political communication rights regarding political issues, which were extended by the Constitution, are extended to the performance and choice of State legislators.

This means that citizens have the right to truthfully inform the public about the state’s political affairs.

But, if the state restricts the rights of individuals or arrests them under the pretext that they hurt the sentiments of politicians, it is a violation of the individual’s freedom to express their thoughts through art.

The state has no right to restrict freedom of expression. Art is a source of hope for individuals.

In this instance, the government has taken Benson’s paintings. This implies that they are limiting Benson’s intellectual rights. These rights were expressed through Benson’s photography.

This implies that implied freedom in political communication has been violated since Benson is not allowed to share his political views or expose the conditions of children.

References

Australian Capital Television Pty Ltd. and New South Wales [1992] HCA45

“Current Trends in the Constitution Freedom of Political Communication.”

(2016) 4(1) Bond University Student Law Review 2.

“Religious Freedom and Section 116 Australian Constitution: Would a Banning the Hijab or Burqa be Constitutionally Legal?

Forum on Public Policy Online. Vol.

McCloy and New South Wales [2015] HCA34

“The Australian constitution provides implied freedom of political observation.”

(2018) 42(1) Melbourne University Law Review.

Stephens’s Appeal v West Australian Newspapers (1994), 182 CLR 211.

Theophanous V Herald and Weekly Times Ltd (1994), 182 CLR 104.

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