French CJ
Hayne
J
Crennan J
Kiefel
J
Bell
J
13.
endeavour to quarantine State legislation from the operation of the freedom.
There is no constitutional principle which accepts that the States can legislate to
affect the Commonwealth Constitution, including its implications. What was
proposed by Gaudron J in the passage in Muldowney referred to above was
immediately qualified by the words, "[a]t least that is so if it does not interfere
with the democratic processes of the Commonwealth." And, as Victoria
accepted, if the provisions of the EFED Act in question are considered to have a
wider effect upon political discussion generally, then the Melbourne Corporation
principle may not be relevant. That concession is properly made. The EFED Act
does affect the freedom. This is so despite the attempt of s 83 and cl 34A of the
Regulations to quarantine the effect of the EFED Act.
Section 96D – a burden on the freedom?
35
The first question posed by Lange 54 is whether s 96D effectively burdens
the freedom of political communication either in its terms, operation or effect. It
requires consideration as to how the section affects the freedom generally 55.
36
In addressing this question, it is important to bear in mind that what the
Constitution protects is not a personal right 56. A legislative prohibition or
restriction on the freedom is not to be understood as affecting a person's right or
freedom to engage in political communication, but as affecting communication
on those subjects more generally. The freedom is to be understood as addressed
to legislative power, not rights, and as effecting a restriction on that power. Thus
the question is not whether a person is limited in the way that he or she can
54
(1997) 189 CLR 520 at 567.
55
Wotton v Queensland (2012) 246 CLR 1 at 31 [80].
56
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
at 150; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 125,
149, 162, 166-167; [1994] HCA 46; Cunliffe v The Commonwealth (1994)
182 CLR 272 at 326; Lange v Australian Broadcasting Corporation (1997) 189
CLR 520 at 560; Hogan v Hinch (2011) 243 CLR 506 at 554 [92]; Wotton v
Queensland (2012) 246 CLR 1 at 31 [80]; Attorney-General (SA) v Corporation of
the City of Adelaide (2013) 87 ALJR 289 at 329 [166]; 295 ALR 197 at 245;
[2013] HCA 3; Monis v The Queen (2013) 87 ALJR 340 at 393-394 [266]; 295
ALR 259 at 326.