Memorandum Of Advice (Amendment 35P)

Memorandum of Advice

Short Answer

John Doe (“John”) seeks to invalidate Amendment 35P(1) of the National Security Legislation Amendment Bill (“the Bill”) on the basis that it infringes the implied Constitutional freedom of communication on governmental and political matters in Australia (“the Freedom of Political Communication”).

It will be shown that Amendment 35P(1), while effectively burdening the Freedom of Political Communication, will likely be found to be reasonably necessary to achieve its legitimate legislative purpose, hence avoiding invalidation.

A favourable outcome based on current law is unlikely for John in a constitutional challenge. A mitigation plea is advised instead to minimize penalty rather than seeking to avoid

Offenders face imprisonment for 5 years. Statutory defences exist under Amendment 35P(3), but do not include an exception for media reporting.

To avoid liability, John wishes to challenge the constitutional validity of Amendment 35P(1) on the basis that it infringes the Freedom of Political Communication.

Issues Arising

Whether Amendment 35P(1) is consitutionally invalid because it impermissibly burdens the Freedom of Political Communication, contrary to the Commonwealth Constitution.

The Freedom of Political Communication

While there is no express protection afforded by the Commonwealth Consitution for a general freedom of speech in Australia, the freedom of communication on matters of government and politics is an indispensible incident of the system of representative government that the Constitution creates. It is implied from the system of representative government enshrined in ss 7 and 24 of the Constitution. The Freedom of Political Communication is not a personal right. Rather, it is a restriction placed upon legislature against enacting laws that burden political

As a body established by a statute of the Commonwealth in connection with the protection of national security, the ASIO is a government body. Information relating to it and SIOs thus throw “light on governmental or political matters” and posses the ability to influence decisions at the polls. Therefore the reporting of ASIO information constitutes communication protected by the Freedom of Political Communication.

(2) Amendment 35P(1) Factually and hence Effectively Burdens the Freedom of Political Communication

Amendment 35P(1) proscribes communications to the public by the media, by criminalizing the reporting of such matters without providing a media defence. Its operation deters and “chills” media coverage on ASIO matters that consitute political communications. It therefore factually burdens the Freedom of Political Communication.

By factually burdening the Freedom of Political Communication, Amendment 35P(1) effectively burdens the Freedom of Political Communication answering the first Lange question in the