'Whither the Implied Freedom of Political Communication' by the Hon Geoffrey Nettle in (2022) 47(1) Monash University Law Review comments
In recent years, the implied freedom of political communication has become one of the more frequently litigated constitutional issues in the High Court of Australia. That is remarkable given the relatively recent recognition of the implied freedom, the differences of judicial opinion that attended its formulation, and forceful criticisms of the doctrine. Critics have said that the doctrine is the product of impermissible judicial activism, and so uncertain and ambiguous in its application that it has failed and will go on failing. This paper explains why it might be thought that, despite such differences of judicial opinion and the difficulties and uncertainties that are said to have attended the doctrine’s application, the implied freedom of political communication is soundly based in accepted constitutional principle. It also explains how the recent invocation of structured proportionality analysis as a test of ‘appropriateness and adaptedness’ is likely to result in increased certainty in the doctrine’s application.
Nettle J states
Last year, in the midst of a matter about a public servant with a penchant for publicly criticising her employer, it occurred to me that the implied freedom of political communication has become one of the more frequently litigated constitutional issues in the High Court of Australia. And that is surely a remarkable development given the implied freedom’s relatively recent and problematic gestation.
Some academic commentators, like Professor James Allan and Professor Jeffrey Goldsworthy, have criticised the doctrine as the product of impermissible judicial activism that flies in the face of the framers’ intention to exclude express constitutional guarantees of rights and freedoms. Others have described it as uncertain and ambiguous and as giving untrammelled power to each judge to make of it what he or she thinks fit. The test of ‘reasonably appropriate and adapted’ has also been derided as ‘mysterious’, ‘cumbersome and inexact’ — a ‘ritual incantation, devoid of clear meaning’ and offering ‘no guidance as to its intended application’. And, memorably, one former justice of the High Court once denounced the implied freedom as a ‘noble and idealistic enterprise which has failed, is failing, and will go on failing’.
As is always the case, however, there are two sides to the story, and so my object in this paper is twofold: first, to suggest that, despite such problems as may have emerged during the initial development of the implied freedom, and the supposed uncertainty of its precise content, there are satisfactory answers to most of the criticisms thus far levelled against it; and secondly, to posit why and how the technique of structured proportionality analysis offers the prospect of greater certainty and refinement.
He concludes
It is that, like other judge-made law, the doctrine of the implied freedom of political communication is necessarily less than perfect. But despite its rocky beginnings, it is not a construct of reprehensible ‘activist judges’. It is an implication that, consistently with the received, high technique of Australian constitutional interpretation, is rightly regarded as necessarily implicit in the text and structure of the Constitution. True it is that its application involves value judgments and the weighing of incommensurables. And in the scheme of things, that will remain so until a more categorical or rules-based approach emerges from case by case analogical development. But, in the meantime, the process of structured proportionality analysis, which for the time being finds favour with a majority of the Court, offers the prospect of consistency and transparency of application conducive to principled development.
