With the current Banerji litigation in the High Court it is interesting to see 'Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power" by Joshua Forrester, Lorraine Finlay and Augusto Zimmermann in (2018) 43(2)
University of Western Australia Law Review 188, commenting
In this article, we explore the implied freedom of political communication’s
(‘implied freedom’s’) application to executive power at the Commonwealth, State
and Territory levels. We propose that the proportionality test used by the plurality
in McCloy v News South Wales be adapted to executive actions affecting the
implied freedom. We then illustrate our proposed approach by applying it to the
case of Chief of the Defence Force v Gaynor.
The authors argue
Over the past 25 years, the implied freedom of political communication
(‘implied freedom’) has become an established part of Australia’s constitutional
landscape. It is well accepted that the implied freedom limits Commonwealth,
State and Territory legislation. However, its effect on Commonwealth, State
and Territory executive powers is somewhat less clear.
In this article, we examine the current approach to the implied freedom
and executive power. We also propose an approach that, in our view, is more
firmly grounded in the text and structure of the Commonwealth Constitution.
We then apply our proposed approach to the topical case of Chief of the
Defence Force v Gaynor.
This article is split into the following parts. In Part II, we cover the
current state of the law concerning the implied freedom, specifically the test
provided by the plurality in McCloy v New South Wales. In Part III, we note
important points about the implied freedom. The implied freedom is not a
right but a restriction on Commonwealth, State and Territory legislative and
executive power. However, it is also a strong and wide-ranging freedom.
Further, common law freedom of expression is itself of constitutional
importance, and is relevant to assessing proportionality in the McCloy test.
In Part IV, we note the current approach to the implied freedom and
executive power, specifically noting the approach in Wotton v Queensland. In
Part V, we propose another approach to the implied freedom and executive
power. We model this approach on that of the plurality in McCloy. We note
here that the sources of executive power differ between the Commonwealth on
the one hand, and the States and Territories on the other. In Part VI, we
consider some issues concerning our proposed approach. These issues include
whether our proposed approach applies to State and Territory executive power,
and to non-statutory executive power. That said, our focus in this article is on
the implied freedom’s effect on the execution of laws and not its effect on nonstatutory
executive power. In Part VII, we argue that the High Court’s approach
in Wotton does not bar adopting our proposed approach.
In Part VIII, we apply our proposed approach to Gaynor. We also
explore issues arising from Gaynor, including accommodating the implied
freedom in the Australian Defence Force (‘ADF’) and other government
agencies.
