Implied freedom of political communication

At the Commonwealth level in Australia, there is no explicitly stated protection for freedom of expression in legislation nor the Australian Constitution.[Note 1][Note 2] Instead, the Constitution implies a freedom of political communication through an interpretation of Section 7 and Section 24.[1] The principle was established by High Court rulings in 1992.[2][3][4]

The implied freedom of political communication is explicitly referenced in multiple, Commonwealth statutes.[5][6][7][8]

The implied freedom of political communication serves as a negative right, since it restricts the legislative power of Commonwealth and State parliaments.[9]

The McCloy v New South Wales case refined a proportionality test, for assessing a law's compatibility with the implied freedom of political communication.[10]

Background

The Constitution of Australia contains no provision expressly guaranteeing freedom of speech, or most other rights comparable to the United States Bill of Rights. Many of the delegates to the constitutional 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 against racial minorities.[11]

In 1942, H. V. Evatt proposed an amendment to the Australian constitution to grant sweeping powers to the Commonwealth government for post-war reconstruction, which also would have enshrined the Four 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 a referendum in 1944. The campaign mostly focused on the powers to be granted to the Commonwealth government, and the referendum was defeated.[12]

Australian Constitutional Law expert, Professor Emerita Anne Twomey, presented the 1988 High Court case Davis 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.[13]

Court cases

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.

Notes

  1. ^ The Australian Capital Territory, Victoria and Queensland have passed human rights legislation which protects freedom of expression at the State level, but the protection may not be entrenched.
  2. ^ Commonwealth legislation passed in accordance with Section 51 of the Constitution - which conflicts with any State legislation, including human rights charters - will override the State legislation to the extent of the inconsistency, as per Section 109 of the Constitution.

See also

References

  1. ^ Griffiths, Leanne (January 2005). "The Implied Freedom of Political Communication: The State of the Law Post Coleman and Mulholland" (PDF). James Cook University Law Review. 12: 93–94.
  2. ^ "Freedom of information, opinion and expression". Australian Human Rights Commission. Retrieved 1 January 2026.
  3. ^ Nationwide News Pty Ltd v Wills [1992] HCA 46 (30 September 1992)
  4. ^ Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45 (30 September 1992)
  5. ^ "Spam Act 2003 (Cth)". Retrieved 8 March 2026.
  6. ^ "Commonwealth Electoral Act 1918 (Cth)". Retrieved 8 March 2026.
  7. ^ "Criminal Code Act 1995 (Cth)". Retrieved 8 March 2026.
  8. ^ "Referendum (Machinery Provisions) Act 1984 (Cth)". Retrieved 8 March 2026.
  9. ^ "Freedom of information, opinion and expression". Australian Human Rights Commission. 18 October 2025.
  10. ^ McCloy v New South Wales [2015] HCA 34 (7 October 2015)
  11. ^ La Nauze, John Andrew (1974). The making of the Australian constitution. Studies in Australian Federation (Reprinted ed.). Hong Kong: Melbourne University Press. pp. 227–232. ISBN 978-0-522-84016-2.
  12. ^ Beck, Luke (2018). Religious Freedom and the Australian Constitution: Origins and Future. ICLARS Series on Law and Religion Ser. Milton: Routledge. pp. 130–142. ISBN 978-1-351-25775-6.
  13. ^ Anne Twomey (31 December 2025). "Prohibiting political chants and slogans". Constitutional Clarion YouTube channel. Retrieved 1 January 2026.
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