This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Constitutional Law Notes

Implied Freedom Of Political Communication Notes

Updated Implied Freedom Of Political Communication Notes

Constitutional Law Notes

Constitutional Law

Approximately 121 pages

These notes were used to achieve a High Distinction in Constitutional Law at Monash University, and include both policy and problem question notes. Be aware that at the time this exam was taken the unit did not include a separate policy question but rather included it within problem questions. The notes package also includes a list of case notes and constitutional theory separate to the problem structures.

The notes cover all course content.

They include clear and easily usable problem str...

The following is a more accessible plain text extract of the PDF sample above, taken from our Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Implied freedom of political communication

  1. Does the implied freedom of political communication limit or invalidate the law?

  1. Introduction

[X] may argue [law] breaches the implied freedom of political communication (IFPC). The HCA has held the IFPC to be a necessary implication of the text and structure of the CC, including ss 7 and 24 (which required that members of the Senate and House of Representatives be ‘directly chosen’ by the people) and s 128 (which requires a referendum for amendments to the Constitution), as well as s 62 and 64 (Lange).

For the voters to be able to make a genuine choice (and to sustain the system of representative government the CC was held to establish), they must have access to political information that could influence their choices. The sections do not confer personal rights on individuals but rather preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

The IFPC can limit both State and Cth laws.

Whether a law breaches the IFPC depends on the application of the test from Lange, as reformulated in Coleman.

  1. Lange test

The Lange test involves two questions.

  1. Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

Is there a burden?

Here, the burden on alleged political communication is [per facts].

  • According to Mulholland v Australian Electoral Commission, the right being infringed by a challenged law must exist under the general law (CL or statute), not the challenged law.

This burden limits

  • Verbal communication, which is protected under the IFPC (speaking)

  • Non-verbal communication (such as signs, symbols, gestures and images) which is protected under the IFPC (Levy).

Is it political communication?

Per Lange, political communication is the ability of the people to communicate with each other with respect to matters

  • that could affect their choice in federal elections or constitutional referenda

  • or that could throw light on the performance of [federal] Ministers of State and the conduct of the executive branch of government.

  • Can include discussion/criticism of police (obiter in Coleman), since their conduct is relevant to how the government is viewed

  • Communication does not have to be rational or peaceful to be political communication; insults are protected (obiter in Coleman)

  • Appeals to emotion are protected just as much as appeals to reason (Levy)

Limits to what may count as communication

ADVERTISING: Political communication was held not to include purely commercial speech/advertising in Theophanous. While this was before Lange, Lange’s definition (while still broad) is narrower than Theophanous and presumably the case would be the same now. Additonally, since Lange, commercial advertising in respect of law services has been held not to be political speech (APLA v Legal Services Commissioner).

STATE LEVEL: Communication at State level might be political communication protected under the IFPC; however, there may need to a connection to federal political matters (Lange). Brennan and McHugh J said in Levy that the implied freedom does not cover communications purely about state politics. The Court in Lange did note however that the scope of political communication remains broad (even discussion of matters concerning NZ may ‘throw light’ on Australian federal government matters).

  1. Is the law reasonably...

Buy the full version of these notes or essay plans and more in our Constitutional Law Notes.