The implied freedom of political communication

Running head: CONSTITUTIONAL LAW
CONSTITUTIONAL LAW
Name of the Student
Name of the University
Author Note

CONSTITUIONAL LAW1
Introduction
The ‘implied freedom of political communication’ is in the existence in order to make
sure that the individuals in the nation of Australia have the ability and the entitlement to
implement a free, conversant and cognizant choice as the constituents or electors. The ‘implied
freedom’ performs in order to forward restriction in relation to the powers regarding the
legislature and the executive. This ‘implied freedom’ is not any kind of a private right that is
granted to the individuals of the nation. As stated in the case of Levy v Victoria (1997) 189 CLR
579, such ‘implied freedom’ involves not only speech; it also includes non-verbal
communication in relation to matters relating to government and politics1. According to Coleman
v Power (2004) 209 ALR 182 it may be said that even though, the law of the Australian nation
does not consider an express guarantee regarding free speech, it has been recognized and
acknowledged by the High Court of the nation of Australia in several decisions that there is an
existence of an ‘implied freedom of communication’ regarding the Constitution of the nation in
connection to the matters of politics and government2. This paper has discussed the cases Robert
James Brown & Anor v The State of Tasmania [2017] HCA 433 and Clubb v Edwards [2019]
HCA 114 in relation to the matter regarding ‘implied freedom of communication’. This paper
aims to forward a critical analysis in relation to the ‘implied freedom of communication’ in
connection to the nation of Australia.
1 Levy v Victoria (1997) 189 CLR 579
2 Coleman v Power (2004) 209 ALR 182
3 Robert James Brown & Anor v The State of Tasmania [2017] HCA 43
4 Clubb v Edwards [2019] HCA 11

CONSTITUIONAL LAW2
Background
The case of Brown v Tasmania is considered to be an important case in the nation of
Australia regarding ‘implied freedom of communication’5. This decision of this case was
forwarded in the High Court of the nation of Australia. The decision was forwarded on the 18th
day of the month of October in the year of 2017. In this particular case, it was held by the
majority that the provisions as provided in the Tasmanian Protestors Act were not acceptable and
invalid. The majority in this particular case forwarded the argument that the provisions in the Act
mentioned above were acting as a burden regarding the ‘implied freedom of political
communication’. Such burden was in a manner, which could not be considered as rationally and
practically acceptable in relation to the protection of the businesses and the operations of the
businesses. The test that was applied in the aforementioned case, was extracted from the case
of Lange v Australian Broadcasting Corporation [1997] HCA 256. Three questions were
considered in relation to the test. The first question was that whether any kind burden is created
regarding the ‘freedom of political communication’. Secondly, it was considered that whether the
purpose and objective regarding the law is legitimate. Thirdly, it was considered that whether the
law was rationally and practically adequate, and whether it was compatible with the structure of
the government that is constitutionally recommended. The reformulated versions of the
aforementioned questions were also utilized as the test or the barometer in the case of Clubb v
Edwards [2019] HCA 117 and its appeal case of Preston v Avery [2019] HCA 118. The
reformulation of the aforementioned questions was done in the case of McCloy v New South
Wales [2015] HCA 349.
5 Robert James Brown & Anor v The State of Tasmania [2017] HCA 43
6 Lange v Australian Broadcasting Corporation [1997] HCA 25
7 Clubb v Edwards [2019] HCA 11
8 Preston v Avery [2019] HCA 11
9 McCloy v New South Wales [2015] HCA 34

CONSTITUIONAL LAW3
Relevant Issues
According to S Chordia, the decision that was forwarded in Brown v Tasmania, has
importance in connection to three capacities. Firstly, the furtherance of the environmental
protests in the forests of Tasmania. Secondly, questioning the validity regarding similar
legislations in the states of Western Australia and New South Wales. Thirdly, the utilization of
the proportionality notion as an assessment or a test regarding constitutional legitimacy or
validity. Hence, as per Chordia, it may be said that the utilization of proportionality as an
assessment or a test regarding constitutional legitimacy begins from the perception or viewpoint
that the liberty and freedom in relation to political communication may not be considered as
unrestricted. It has also been stated by Chordia that the several parliaments of the nation of
Australia have been permitted to establish valid and effective laws, which affect the
implementation of political communication10.
According to Tony Blackshield and George Williams, it was originally found that
‘implied freedom’ in relation to the terms ‘implied freedom of communication’ has been
extracted from the idea and idea relating to representative democracy. However, in the Lange
case, it was stated by the court that the text and the structure regarding the Constitution that
caused the ascending of the implication.
According to Patrick Emerton and Maria O’Sullivan, it may be stated that the provisions
as provided in the Protestors Act have been considered by the court as those that prohibit or
restrict the individuals who all are involved in the activities relating to protest, from performing
any kind of actions that may obstruct, hinder or prevent the access to the premises where
10 Bartlett, William. "The Raised Spectre of Silencing Political and Environmental Protest: Will the High Court Find
the Workplaces (Protection from Protesters) Act 2014 (Tas) Impermissibly Infringes the Constitutionally Implied
Freedom of Political Communication in Brown v. The State of Tasmania." (2017) U. Tas. L. Rev. 36: 1.