The implied constitutional freedom of political communication

It's not uncommon to hear people in Australia talk about their 'right to freedom of speech'. However, many people are surprised to learn that the Australian Constitution contains no such right. Rather, our Constitution provides for an 'implied freedom of communication' about government and political matters. The implied freedom isn't an individual right — it restricts laws which interfere with free communication about government and politics. In this blog post, we take a closer look at the implied freedom of political communication – including its origins, the legal test, and the implications for Victoria.

What is the implied freedom, and where does it come from?

As its name suggests, the implied freedom is not expressly contained in the Constitution.It is an implication drawn from the constitutional 'text and structure'. It originates from the sections of the Constitution that require that the Commonwealth Parliament be 'directly chosen' by the people, and that the people will change the Constitution by vote.

The High Court regularly emphasises that the implied freedom is not a personal right, but operates as a restriction on legislative and executive power.This means that the Commonwealth and State governments cannot make laws or take action that would breach the implied freedom.

The implied freedom is not absolute ­– it exists only to the extent necessary to protect the system of government reflected in the constitutional text. In practical terms, then, this means that a law can interfere with communication about government or politics without breaching the implied freedom, if the law does so for a legitimate aim, and is generally proportionate to that aim.

What does it mean for Victoria?

As a constitutional implication, the implied freedom of political communication limits the States as well as the Commonwealth.  This means that Victorian legislation is subject to the implied freedom. 

What is the legal test?

Under the current case law, three questions must be answered when deciding whether a law infringes the implied freedom:

• Does the law effectively burden the freedom in its terms, operation or its practical effect (the burden question)?
• If so, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government (the legitimate end question)?
• If the answer to the second question is 'yes', is the law reasonably appropriate and adapted to advance that legitimate object (the reasonably appropriate and adapted question)?  This question involves a proportionality test to determine whether the law is justified as suitable, necessary and adequate in its balance.

If the first question is answered 'yes' and the second or third question is answered 'no', the law will be invalid.

Question 1: The 'burden' question

A law burdens communication about government or political matters if it restricts or burdens the content of political communications, or the time, place, manner or conditions of their occurrence. 

It is not entirely clear when a communication will be about 'government or political matters' under the current case law.  It appears that any communications that could reasonably bear upon voting behaviour in federal elections are included.  This can extend to communications about State or Territory politics, given the intertwined nature of Australian political affairs, and about the actions of public officers (eg police officers), given voters' attitudes to the conduct of such persons can play a significant role in election outcomes.  That being said, in Clubb v Edwards, the High Court held that personal communications concerning reproductive choices aimed at women entering abortion clinics were not 'political' communications.[1]

It is clear, however, that political communication can include a whole range of non-verbal communication – extending to signs, images, actions, and even mere presence in a physical location.  For instance, in Kerrison v Melbourne City Council, the Full Court of the Federal Court held that the presence of protestors who were part of the 'Occupy Melbourne' movement in a public park was a form of political communication.[2]

Question 2: The 'legitimate end' question

The legitimate end question asks whether the purpose of the law and the means adopted to achieve it are 'legitimate', in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government. 

In other words, a law which burdens the implied freedom may still be lawful if both its goal and its methods are consistent with the system of government established by the Constitution.

Examples of legitimate ends include the protection of reputation, the prevention of physical injury, the prevention of violence in public places, the prevention of corruption in elections and ensuring the safety, wellbeing, privacy and dignity of women attempting to access abortion services.

An example of an end that may not be legitimate is maintaining the civility of public discourse – that is, prohibiting people from offending or insulting one another.  For example, in Monis v the Queen, the High Court split 3:3 on whether a legitimate end was served by a provision which made it an offence to use a postal service in a manner that a reasonable person would regard as offensive.[3]

Question 3: The 'reasonably appropriated and adapted' question

The third question asks whether the law is 'reasonably appropriate and adapted' to advance the legitimate end.

This question can be answered by performing a three-part proportionality test, by considering:

• suitability – is there is a rational connection between the provision and the legitimate end?
• necessity –are there other, equally effective, means of achieving the legislation's purpose (ie, an 'obvious and compelling alternative') which have a less restrictive effect on freedom of political communication?
• adequacy in its balance – which requires balancing the purpose served by the impugned provisions against the extent of the restriction on the freedom.  This enquiry requires a value judgment by the court.

With respect to necessity, it will be highly relevant if other jurisdictions (or even the same jurisdiction in which the relevant legislation was enacted) have achieved the same legitimate purpose using less onerous means. 

For example, in Brown v Tasmania,[4] the High Court held that a Tasmanian law which prohibited 'protest activity' on certain land (including forest land) was not 'reasonably appropriate and adapted' to the legitimate end of protecting business from protest.  The Court considered the uncertainty and vagueness of the provisions to be unnecessary, and noted that pre-existing Tasmanian legislation achieved the same end with less burden.

[1] Clubb v Edwards; Preston v Avery [2019] HCA 11.
[2] Kerrison v Melbourne City Council (2014) 228 FCR 87 (Flick, Jagot & Mortimer JJ).
[3] Monis v the Queen (2013) 249 CLR 92.
[4] Brown v Tasmania (2017) 261 CLR 328.

Contact our team

The VGSO regularly advises on the application of the implied freedom of political communication to Victorian legislation, and represents the State of Victoria in litigation in which the implied freedom is raised.  If you are a Victorian Government department, agency or statutory authority looking for advice on the implied freedom, please contact us.

Alison O'Brien
Assistant Victorian Government Solicitor, Public Law & Planning
Phone: 8684 0416
Mobile: 0409 385 343
Email: alison.obrien@vgso.vic.gov.au

Jessica Cleaver
Managing Principal Solicitor, Public Law & Planning
Ph. 8684 0402
Mobile: 0458 835 932
Email: jessica.cleaver@vgso.vic.gov.au