Landmark High Court challenge on representative democracy

26 May 11

DATE: 26 May 2011

A High Court challenge could have a profound effect on the right to freedom of political communication, participation and association under the Australian constitution.

The challenge brought forward by a Palm Island indigenous activist who was convicted of rioting after the death in custody of Cameron Doomadgee relates to a gag order, which prevents him from speaking to the media.

Released last year from jail, Lex Wotton has been given a four-year media ban as part of his parole conditions, which prevents him from attending forums on Palm Island without the permission of Queensland authorities. According to court documents obtained by The Age, when Mr.Wotton sought permission to attend a juvenile justice forum in October last year, he was denied consent.

The case, which will be heard in August, goes to the very heart of what is meant by “representative democracy” according to Phil Lynch from the Human Rights Law Centre.

The Australian Constitution does not specifically protect freedom of speech nor is the concept of representative democracy directly mentioned.  However in 1992, the High Court of Australia ruled that a right to expression, in terms of public and political discussion was implied in the Constitution. Since then High Court rulings have indicated that there are implied rights to freedom of speech and communication on matters concerning politics.

More recently two High Court cases, involving prisoner voting rights and early closure of the Commonwealth electoral roll have given more weight to the concept of representative democracy.

The Human Rights Law Centre is backing the High Court Challenge and Mr.Wotton’s legal team, which includes Melbourne-based counsel Ron Merkel QC, are seeking to overturn a section of the Queensland Corrective Services Act 2006 and invalidate the gag order, which according to civil libertarians is a breach of the basic right to freedom of speech and undermines Mr.Wotton’s rehabilitation and reintegration into society.