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At the Federal level in Australia, there is no explicitly stated protection forfreedom of expression in legislation nor theAustralian Constitution.[Note 1][Note 2] Instead, the Constitution implies afreedom of political communication through an interpretation ofSection 7 andSection 24.[1] The principle was established by High Court rulings in 1992.[2][3][4]
The implied freedom of political communication serves as anegative right, since it restricts the legislative power of Commonwealth and State parliaments.[5]
TheMcCloy v New South Wales case refined a proportionality test, for assessing a law's compatibility with the implied freedom of political communication.[6]
TheConstitution of Australia contains no provision expressly guaranteeing freedom of speech, or most other rights comparable to theUnited States Bill of Rights. Many of the delegates to theconstitutional conventions considered that such protections were unnecessary or even insulting toward Australian parliaments, and in some cases were concerned that they would undermine existing laws discriminating againstracial minorities.[7]
In 1942,H. V. Evatt proposed an amendment to the Australian constitution to grant sweeping powers to the federal government for post-war reconstruction, which also would have enshrined theFour Freedoms, including freedom of speech. A pared back version of the amendment which would also only have effect for five years after the end of the war was put to areferendum in 1944. The campaign mostly focused on the powers to be granted to the federal government, and the referendum was defeated.[8]
Australian Constitutional Law expert, Professor Emerita Anne Twomey, presented the 1988 High Court caseDavis v Commonwealth – in which a law concerning slogans about Australia's bicentenary of European colonisation was partially invalidated due to impacts on freedom of expression – as an indirect precursor to the implied freedom of political communication.[9]
The following legal cases illustrate the extent to which the implied freedom of political communications does, and does not, apply.
The implied freedom of political communication can also be invoked by state supreme courts, allowing them to invalidate or uphold state legislation, as evidenced below.
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