June 2

Freedom of political communication

 Should the people behind the Say Yes Australia campaign for a carbon tax be able to spend as much as they like on their cause, asks Andrew Norton in The Australian (2/6)

As a research fellow at the Centre for Independent Studies, Mr. Norton was referring to his just released report, Democracy and Money: The Dangers of Campaign Finance Reform. That is the kind of question being considered by a new federal parliamentary review of political campaign spending  quietly set up a few weeks ago, writes Mr. Norton.

“If they follow the precedents recently set in NSW and Queensland, the answer will be no, at least not during a campaign period. And people who fund the campaign will face significant new restrictions on how much they can donate.” 

 ….implied freedom…

What constitutionally guaranteed freedom of speech do Australians have?

In 1992, in Australian Capital Television Pty Ltd v Commonwealth the High Court implied a freedom of communication in relation to political affairs of the system of representative democracy.

This system was created under sections 7 and 24 of the Constitution.  The court invalidated a Federal statute prohibiting political advertising on television and radio.

In the years following this case the High Court hesitated as to the precise formulation of the implied freedom.

…form of freedom settled …


This was settled in 1997, in a case brought by the former New Zealand Prime Minister David Lange, Lange v Australian Broadcasting Corporation. ( This was  a case in which I presented an amicus curiae brief to the Court on behalf of the Australian Press Council.)

The court held that this implied freedom of communication is an indispensable incident of the system of representative government and was not restricted to the election period. 

But it is not absolute.It will not be infringed by a law provided it fulfils two conditions. 

The first condition is that the object of the law is compatible with the maintenance of a constitutionally prescribed system of representative and responsible government.

The second condition is that the law “is reasonably appropriate and adapted to achieving that legitimate object.” In other words that it is proportionateto a legimate objective.

..freedom and campaign financing….

It is difficult, indeed almost impossible  to see how the legislation adopted in New South Wales and Queensland can in any way comply  with this constitutional implication.  

The sooner it is brought before the High Court the better.



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