In Mbuzi v Griffith University  FCA 1323, the applicant doctoral candidate at the university, having had his doctoral candidature terminated, alleged, inter alia, that this resulted from the government-critical content of his thesis concerning the impact of European arrival on indigenous Australians. Thus, he alleged, his implied right of communication on political matters under the Constitution had been infringed.
However, that argument was rejected for, as Collier J affirmed, the implied freedom of communication on government matters as stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 is a constraint upon legislative and executive power and does not confer personal rights. Her Honour said that in other words, the implied right of freedom of communication is a “shield”, not a “sword”, and is there to be invoked in circumstances where an existing law allegedly impacts on the freedom of the citizen.
Her Honour also said:
“… in any event, Mr Mbuzi draws a very long bow in alleging that because his doctoral thesis apparently includes criticism of Federal Government policies concerning indigenous people, his right of freedom of communication is breached by Griffith University terminating his candidature. Placing to one side the distinct dearth of evidence before me as to the nature of this criticism, and more broadly the nature of the discussion of political and governmental matters proposed by Mr Mbuzi in his doctoral paper … (t)here is nothing before me to support a finding that Mr Mbuzi is being prevented by Griffith University disseminating information concerning the topics of government policy and indigenous poverty. It is simply that as a result of the decision to terminate his candidature he will be unable to produce a thesis pursuant to a degree at Griffith University …” Further said her Honour: “Mr Mbuzi’s submission, taken to extremes, would necessarily entail a finding that any decision of the examiners of his thesis to fail it for being of insufficient standard to warrant the award of the doctoral degree (or, for that matter, a refusal of a publisher to publish his thesis for any reason) would similarly fall foul of the implied right of freedom of communication, because it would similarly deny him the publication of his views. This proposition is equally without foundation.”
This article first appeared in the Australian Commonwealth Courts and Family Law Tracker. The cases will be discussed in more detail in the CCH Australian High Court and Federal Court Reporter. Written by Christine Henchman, Senior Writer.