By Dr Lael Weis

McCloy Case Page

Much of the commentary about McCloy, the High Court’s recent decision upholding NSW’s ban on donations by property developers, will concern the disagreement among members of the Court about the appropriate method for analysing burdens on the freedom of political communication, and I will look forward to what my colleagues have to say. My own contribution to the blog symposium on this case focuses on a long-standing consensus point: namely, the idea that the freedom is not an ‘individual right’.

Although I imagine members of the public might feel somewhat scandalized if told the right of individuals to communicate political matters is a fake idea in Australia, this is something the Court seems firmly committed to. Each of the four judgments in McCloy affirms this proposition: at [29]–[30] (French CJ, Kiefel, Bell, and Keane JJ); at [119]–[120] (Gageler J); at [219] (Nettle J); at [316]–[319] (Gordon J).

This was also a consensus theme in Unions NSW [2013] HCA 58, the antecedent to McCloy that struck down a wider NSW ban on political contributions by people who are not on the electoral role, such as corporations and unions. In a joint judgment

in that case, French CJ, Hayne, Crennan, Kiefel and Bell JJ, at [36], remarked that:

[W]hat the Constitution protects is not a personal right. 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 express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom?

This resistance to the characterization of the freedom of political communication (‘the freedom’) as an ‘individual’ or ‘personal right’ is nothing new. It is a point frequently made by members of the High Court when litigants invoke the free speech jurisprudence of other jurisdictions, and the First Amendment jurisprudence of the Supreme Court of the United States in particular. The High Court has always insisted that one important limitation to any attempt to draw on American First Amendment jurisprudence is the fact that the freedom is not a constitutional right in the sense of an ‘individual right’ or a ‘personal liberty’, but a constitutional limitation on legislative power derived from the system of representative government that the Constitution mandates.

In the context of the McCloy case, the Court’s rejection of an individual right view of the freedom is embedded in its response to the plaintiff’s argument that an important aspect of the freedom is the capacity to influence political outcomes. Because making campaign contributions is one of the principal means of exerting influence, the plaintiff’s argument goes, legislative power to regulate campaign contributions ought to be confined to—or at least not extended too far beyond—eliminating quid pro quo corruption: at [25]–[30] (French CJ, Kiefel, Bell, and Keane JJ). This is the position in the United States after the Citizens United decision, where a narrow majority of the Supreme Court held that eliminating the appearance of corruption is not a legitimate reason for burdening political speech. Members of the High Court thus appear to think that the scope of First Amendment coverage in this area is principally a function of the form of the guarantee.

Accordingly, in evaluating the plaintiff’s argument on this point, French CJ, Kiefel, Bell and Keane JJ remarked that the ‘argument appears to mistakenly equate the freedom under our Constitution with an individual right such as is conferred by the First Amendment to the United States Constitution, which operates in the field of political donations and is in the nature of both a right of political expression and a right of political association’: at [29]. This is a mistake, it is said, because ‘the freedom is not a personal right’: at [30].

However, as my colleague Professor Adrienne Stone has often pointed out in her commentary, this is really a distinction without a difference. The First Amendment, like many other free speech clauses, functions as ‘negative right’ that constrains the exercise of legislative power and not as a ‘positive right’. It requires non-interference with certain expressive activities where the source of the interference has an element of state action, but it does not require that the state take any affirmative steps toward promoting the freedom of speech. In this respect, the operation of the First Amendment and the freedom are functionally equivalent.

While I agree with this point, I still have often puzzled about the High Court’s aversion to characterizing the freedom as an individual right. Does the aversion simply rest on a confusion about the function of rights that stems from the exceptional nature of our constitutional system in conjunction, perhaps, with a tendency to fixate on labels? Or is there something at stake here?

There can be no doubt that the aversion has something to do with the ‘structural’ grounding of the freedom, that is, the fact that the freedom is not a free standing right of the kind one would find in a charter or bill of rights, but an implication from the text and structure of the Constitution.

One possibility is that the Court simply wants to disabuse us of the temptation to forget this important fact about sources — what Gageler J refers to as ‘fidelity to the reasons for the implication’: at [150]. Thus the worry might be that the ‘individual right’ idea risks detaching the freedom from its structural foundation and rationale, as if it is a freestanding guarantee of freedom of speech and expression writ large. Coincidentally, this was a topic that came up a few weeks ago in our Legal Theory Workshop when discussing a paper from philosopher and free speech theorist Robert Simpson. One broad objective of Simpson’s paper was to point out the resulting pathologies when a constitutional right of free speech becomes ‘untethered’ to the reasons for its special protection and to advocate a ‘re-tethering’. Several participants in that discussion pointed out that Simpson might find the High Court’s freedom jurisprudence attractive for that reason.

But if this is all that the Court’s aversion to characterizing the freedom as an ‘individual right’ comes to, then rejecting the label doesn’t make much sense. There is nothing about the concept of an individual right that precludes insisting on a highly specific description of its subject-matter. It is perfectly coherent to insist that the freedom is an individual right of a particular kind — a right to freedom of political communication and not a right to freedom of speech and expression writ large — the content of which must be understood in terms of the constitutional structure that forms the basis of the implication.

This brings me to another possibility, which I find intriguing. Perhaps what troubles members of the High Court is the idea, found in the two standard liberal conceptions of rights, that rights are fundamentally about individuals — the function of rights being either to protect the interests of individuals (‘interest-based’ theories) or else to protect the status of individuals as ‘small scale sovereigns’ (‘will-based’ theories). In rejecting the characterization of the freedom as an ‘individual right’, then, perhaps what the High Court wants to insist upon is that the function of the freedom is to protect the system of government that is constitutive of popular sovereignty. Effects on individuals do of course matter to the overall assessment of whether a law impermissibly impairs that system, but that is only because the system of government is partly constituted by (although, importantly, not fully reducible to) individuals. The ‘freedom’ required for political communication is a demand addressed to the needs of a particular form of political system, not to the needs of individuals per se.

To the extent that we can call it a right, then, we might say that the freedom is a ‘structural right’ as opposed to an ‘individual right’ or a ‘personal right’.

Assuming that something along these lines is correct (and leaving aside the difficult question of whether the notion of a ‘structural right’ is even conceptually coherent) then what — if anything — turns on characterizing a ‘right’ as something held by an individual against otherwise legitimate exercises of legislative power as opposed to a structural component of the legitimate exercise of legislative power?

All I can do here is offer an observation to provoke further discussion: whereas many free speech principles resolve the antagonism between the liberty values and equality values by tipping the scale in favour of liberty—the First Amendment clearly does so—the freedom clearly tips the scales in favour of equality. Indeed one of the most striking statements in the joint judgment is the assertion (at [45]) that:

Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution.

This idea is picked up in the other judgments as well. For instance, Gordon J refers to ‘the “great underlying principle” of the Constitution that the rights of individuals are secured by ensuring that each individual has an equal share in political power’: at [318] (emphasis in original); see also [185]–[187] (Gageler J) and [271] (Nettle J).

Perhaps, then, one feature of ‘structural rights’ is that there is more leeway for regulation that burdens the liberty interests of individuals, since the content or scope of the right is not guided by an analysis of the importance of political communication to individuals, but by the importance of political communication to the integrity of the system. The relevant ‘freedom’ is ‘a safeguard of systemic integrity’ rather than a safeguard of individuals against intrusions by the state: at [247] (Nettle J), see also [119] (Gageler J). Thus in context of the freedom, ‘levelling the playing field’ is regarded as a prima facie a legitimate end: at [41]–[42] (French CJ, Kiefel, Bell, Keane JJ).

I suspect that this idea will have attraction to some. For others, whatever advantages the idea of a ‘structural right’ might have for overcoming objections to what many of us regard as reasonable regulation, there will be concern that it requires adopting a problematically non-reductionist view of ‘the system’, according ‘it’ independent weight as if its existence and ultimate justification can be divorced from ‘us’. And this may well go to show that the idea is incoherent as a conception of a ‘right’ after all.

In any event, the distinction between ‘individual’ and ‘structural’ rights sketched above strikes me as a distinction with a difference that could help make sense of the High Court’s unrelenting commitment to the view that the freedom of political communication is not an individual right.

AGLC3 Citation: Lael Weis, ‘McCloy Symposium: Lael Weis on Why Political Communication Isn’t an Individual Right in Australia’ on Opinions on High (19 October 2015) <https://blogs.unimelb.edu.au/opinionsonhigh/2015/10/19/weis-mccloy>.

Lael Weis is a Lecturer at Melbourne Law School and convenes the MLS Legal Theory Workshop.