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Implied Freedom Of Political Communication Notes

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This is an extract of our Implied Freedom Of Political Communication document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Monash University students.

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Implied freedom of political communication

6. 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.

2. Lange test The Lange test involves two questions. i.

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 o

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


Nonverbal 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 o

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.

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