The High Court in two recent cases (Australian Capital Television Pty Ltd v The Commonwealth 1992:577 — the political advertising case and Nationwide News Pty Ltd v Wills 1992:681 contempt of Conciliation and Arbitration Commission case — (1992)) has effected a fundamental change to the Australian Constitution. The Court held (simplifying the holding due to restraints of space) that legislative provisions in two Acts passed by the Parliament of the Commonwealth were invalid because they infringed an implied guarantee of freedom of communication on political matters (political discourse). The significance of these decisions lie in that the Court was willing to imply into the Constitution limitations which are not stated within it.
These decisions signal a trend that the High Court is moving towards the recognition of other areas of legislative activity which the Parliament of Commonwealth cannot embark upon, without having its legislation declared invalid.
The decision is authority only for what it decides. Therefore technically the High Court may subsequently hold that there are no other guarantees of freedom which are recognised. However it is illogical to recognise a particular area of freedom and subsequently refuse to recognise other areas of freedom.
What freedoms will be recognised? The future alone provides the answer. The unfortunate reality is that the freedoms which would be recognised in the future are those which fall within the political philosophy and views of the judges of the High Court.
The question must arise whether the Court will demonstrate respect for the right to property beyond section 51(xxxi) of the Constitution.
The rationale for recognising the right to property is its fundamental and paramount nature. It is arguable that all human rights are dependant on the right to property.
The right to private property supports all other political and civil rights. In particular, political rights lose much of their effectiveness where the right to private property is denied. At the practical level, the exercise of freedoms such as those relating to expression, association and religion is difficult, if not impossible, without independent sources of income or wealth. In societies which deny the right to hold, enjoy and productively use private property, citizens are dependent for their employment and livelihood on the government. They have, therefore no capacity to oppose the government or to exercise their fundamental rights.
A free news media cannot operate without freedom to own and operate machinery and property. Religious freedom is often meaningless without the right to own property (Church buildings). Private education is impossible without lands or buildings. Elections are meaningless where individuals are largely or totally dependent on government.
The freedom of the individual to hold and enjoy private property is, in recent times, clearly the most subverted of liberal values. Yet without this right, all other freedoms are practically meaningless. Not only is this right of instrumental value to other freedoms but it is also indistinguishable from the very notion of individual freedom. As Professor Alice Tay states:
Property is that which a man has a right to use and enjoy without interference: it is what makes him as a person and guarantees his independence and security. It includes his person, his name, his reputation, his chattels, the land that he owns and works, the house he builds and lives in and so on. These things are seen as his property in early law because they are seen as the verification of his will, as the tangible, physical manifestation of his work and his personality. (Tay 1978:10)
The alternative to private property is government property. Government owns and controls individuals to the extent it owns and controls property. Feudal, communist and fascist systems illustrate the truth of this simple and basic proposition which is so easily overlooked.
The political philosophy of the judges of the High Court (crucial to its decisions in the area of fundamental rights) may not lead to the recognition of an implied right to private property as a logical extension of its concern for freedom.
But academics and counsel who appear before the Court should pursue the important implications for Mabo of the High Court's flirtations with fundamental rights.