Final Exam (Pt 2/2) PDF

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Final Exam (Pt 2/2)...

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LAWS3000 FINAL EXAM 2021

Is the High Court of Australia correct in holding that the Australian Constitution contains an implied freedom of political communication, or has the Court strayed beyond its role of interpreting the text of the Constitution?

Unlike the United States, the Australian Constitution lacks an extensive Bill of Rights to provide our explicit rights as Australian citizens. Due to a lack of rights mentioned in the Constitution, the High Court is left to draw on constitutionally implied freedoms, most notably the freedom of political communications (FPC). Historically, the freedom of political communication arises implicitly from ss 7, 24, and 64 of the Constitution (‘ACTV’ and ‘Nationwide News’ cases), which collectively provide for a system of representative government where all members of parliament are ‘directly chosen by the people’ (s 7 Constitution). Post Engineers, the HCA has held that the implied freedom of political communication is a consequence of our representative system of government, meaning it is in fact a requirement of communication, not a right, that is to be found in the Constitution (ACTV; Nationwide; Lange). This essay attempts to argue why the HCA’s position is valid.

Unpacking the implied freedom of political communication, the majority in Nationwide held that such a freedom is necessary to enable the discussion of political and governmental affairs in order to uphold a truly representative government. Somewhat paradoxically, an implied right is drawn from a literal interpretation of s 7, as the words ‘directly chosen by the people’ in s 7 of the Constitution implies that freedom of speech is required to discuss political and governmental affairs (Nationwide). This was further elaborated in ACTV where it was determined that an implied right cannot be restricted to influence a citizen’s awareness on how to vote— an explicit right provided by s 41 (Constitution). Here lies the parameters for the implied freedom, as the Court has emphasised that only vertical protection from prohibitions on political communication has been supported by the HCA.

In practice, the implied freedom of political communications has invalidated acts such as the Workplaces (Protection from Protestors) Act 2014 (Tas), which was said to impermissibly burden the implied freedom (Brown v Tasmania— established using McCloy v NSW test). In decisions following Engineers (which prima facie suggests no implied rights can be drawn from the Const), the Courts have emphasised that necessary implications serve a legitimate role in the judicature, as they are tied closely to preserving democratic process. It is for the reason of upholding the democratic process that the High Court is correct in asserting that the Australian Constitution contains an implicit freedom of political communication.

-freedom of communication is a consequence of the Constitution's system of representative and responsible government, it is the requirement and not a right of communication that is to be found in the Constitution (Lange v Australian Broadcasting Corporation (1997)); Lange test 2004)) used in (Coleman v Power (

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According to Professor Rosalind Dixon: Australia does in fact already have an entrenched charter of rights at the national level – it is just extremely narrow, or incomplete, compared to both international and comparative models, and broadly shared understandings of human rights in Australian legal and political culture.2

Critically evaluate this statement by reference to constitutional principles and cases examined in this course.

Although many failed attempts at establishing a charter of rights at the federal level (1942 Referendum; Human Rights Bill 1973; Constitutional Commission and 1988 Referendum), political commentators such as Professor Rosalind Dixon would be quick to note that Australia does in fact have a limited number of expressed rights, relying on the Australian Constitution itself as well as relevant statutory provisions. The five express rights included within the Constitution are the ‘right to vote’ (s 41), the right to the ‘acquisition of property on just terms’ (s 51(xxxi), the ‘right to a trial by jury’ (s 80), the right to practice ‘freedom of religion’ (s 116) and the prohibition of ‘discrimination’ (s 117). Outside the Constitution, statutes such as the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) have been introduced to assist in consolidating

Relevant to note that both the ACT and Vic governments have successfully introduced their own Bill of Rights (Human Rights Act 2004 (ACT); Victorian Charter of Human Rights and Responsibilities 2006 (Vic))

Compared to the 39...