Implied freedom of political communication


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Within Australian law, there is no freedom of speech.[Note 1] Instead, the Australian Constitution implies a freedom of political communication through an interpretation of Sections 7 and 24 of the Constitution.[1]

The implied freedom of political communication serves as a negative right, since it restricts the legislative power of Commonwealth and State parliaments.[2]

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.[3]

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 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 federal government, and the referendum was defeated.[4]

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.

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. 18 October 2025.
  3. ^ 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.
  4. ^ 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.
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