The Impact Freedom of Political Case Study 2022

THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION
NAME OF STUDENT

Introduction
Despite the misconceptions, the implied freedom of political communication is not a personal
right handed to individuals. It rather exists to restrict the powers of the executive and legislature.
It was given rise through the basis of representative democracy, which in itself was initially
harbored by the constitution. So it is safe to say that implied freedom of political communication
has its context under the constitution. It was recognized in 1992, to give meaning and balance to
laws of defamation and implied freedom of political communication1.We shall not only explore
the scope of the implied freedom of communication, its common law content, but also analyze
the test applied to determine whether any law restricting it is valid or not.
This implication was first found in Lange v Australian Broadcasting Corporation. In this case,
the Australian Broadcasting Corporation showcased a programme which was defamatory to the
then David Lange, a member of state in New Zealand. This show claimed that the Prime Minister
had abused his powers and could not be trusted to conduct his office duties. Lange then claimed
that the corporation was fully aware that the information was false and hence brought an action
of defamation against them. The corporation then in turn relied upon the defense of qualified
privilege, arguing that they had the right to make the statements in the interest of the public. The
court agreed that the system of representative government outlined in the constitution implied
freedom of political communication.2 It also held that the defense of qualified privilege should be
expanded to give information to the public on government and political matters, and that this
information should be based on reasonable communication. 3 The most astonishing commentary
made in this landmark was a two part test for validity of laws, the court held:
“First, does the law effectively burden the freedom of communication about government or
political matters either in its terms, operation or effect? Secondly, if the law effectively burdens
that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the
fulfilment of which is compatible with the maintenance of the [system of government prescribed
by the Constitution]? If the first question is answered 'yes' and
1 Leanne Griffiths, “The implied freedom of political communication: The state of the law post Coleman and
Mulholland” (2005) JCULawRw 93, 94.
2 Lange v Australia Broadcasting Corporation ,HCA 25, (1997) 189 CLR 520
3 Lange v Australia Broadcasting Corporation, HCA 25, (1997) 189 CLR 520 at 562-566.

the second question is answered 'no', the law is invalid.”4
This test has gone a long way to elaborate and extend the scope of implied freedom of political
communication, specifically to control executive and legislative powers. This is yet another
controversial aspect that we shall discuss later. Since in the legislature only positive actions can
be affirmed, but the real pickle comes in the executive because, the law is not clear on whether
implied freedom shall protect against the absence of action. For instance the executive might
refuse to divulge important information to the public.5
Now after the Lange case, the advent of the implied freedom of political communication was
inevitable in Australia, with court cases basing their judgements on the Lange test. One particular
case was Coleman v Power . It involved an incident between Constable Brendan Power and
Coleman, who was very busy giving out pamphlets that spoke of the infesting corruption within
the police walls. When the Constable who was one of the aforementioned corrupt police officers
in the pamphlets got wind of this news. He immediately marched to arrest the appellant, who in
turn tried to resist the arrest and declared to the crowd that the constable was a corrupt law
enforcer. Coleman was then charged with insulting words contrary to section 7(1) (d) of the
Vagrant’s Gaming and other offences Act 19316. He sought to plead a defense in the name of the
implied freedom of political communication, so the role of the court was to determine whether
the law was invalid according to the implied freedom using two part test of the Lange case. In
considering the role of the law and whether it was invalid, for example was it meant to prevent
any public confrontations or convey political speeches? The judges eventually approved it hence
dismissing Coleman. 7
However, despite the numerous criticism the general consensus is that the implied freedom of
political communication protects the electors from the representative and from themselves also.
That is why we shall look at the role of this implied freedom when it comes to regulating
legislative and executive powers. While analyzing the disparities that have been noted between
the two.
4
5 Richard Jolly, “The Implied freedom of political communication and disclosure of government information”
(2000)28(1) Federal Law Review 41, 43.
6 Vagrant’s Gaming and other offences Act 1931(QLD) s7.
7 Coleman v Power (2004) 220 CLR 1.