Australian Constitutional Law Concepts and Cases

This chapter examines an implied restriction on power: the implied freedom of political communication. The Australian Constitution establishes a system of representative and responsible government. The High Court has explained that because freedom of political communication is necessary for such a system to function it follows that laws that impermissibly burden communication about political matters must be invalid. The High Court has developed a three-stage framework of analysis for assessing the validity of laws challenged for breach of the implied freedom. That framework requires examining whether the law has the effect of burdening political communication, whether the purpose of the law is legitimate, and whether the operation of the law is proportionate. The High Court has been clear that the implied freedom is a restriction on power, rather than an individual right, and that it protects only communication about governmental and political matters rather than freedom of speech more broadly.