Cunliffe and Another v. The Commonwealth of Australia (1994) 182 CLR 272: Whether implied freedom was not limited to communications for the purposes of the political processes

Facts: The plaintiffs sued the Commonwealth in the High Court for a declaration that Pt 2A of the Migration Act 1958 (Cth) was invalid. Part 2A established a registration system for persons who gave immigration assistance or who made immigration representations. A person who was not so registered was prohibited from giving immigration assistance unless he or she came within certain exceptions. The plaintiff argued, amongst other things, that the law was invalid because it contravened the implied constitutional guarantee of freedom of communication. The plaintiff argued that this implied freedom was not limited to communications for the purposes of the political processes in a representative democracy, but applied generally to all people of the Commonwealth in their communications with the Commonwealth Government.

Held per Brennan, Dawson, Toohey and McHugh JJ: that Pt 2A was wholly valid as a law with respect to aliens within s51(xix) of the Commonwealth Constitution. The registration imposed by 2A upon the giving of immigration assistance to aliens or the making of immigration representations on their behalf did not interfere with any freedom of communication implied by the Constitution; per Brennan J on the ground that they did not infringe the freedom of political discussion that is necessary to maintain the system of representative democracy; per Dawson J on the ground that they were not incompatible with the requirements of the system of representative government with the Constitution ordains; per Toohey J on the ground that they did not constitute an undue restriction on the implied freedom of political communication; and per McHugh J on the ground that the Constitution contained no guarantee of freedom of expression to which they were obnoxious.

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