The Commonwealth Constitution does not contain an express provision declaring that every person has a general right to freedom of speech. There is no simple constitutional statement that Parliament shall not make laws restricting freedom of expression. Nevertheless, Commonwealth constitutional law recognises a freedom of communication about governmental and political matters. The freedom arises from the structure of the Constitution itself, particularly from the provisions establishing a system of representative government.
That starting point is important because it tells us something fundamental about the nature of the freedom. It is not, in the traditional sense, a personal right. The implied freedom is principally a limitation upon legislative power. The Constitution establishes a system in which members of Parliament are chosen by the people. For that system to operate meaningfully, the people must be able to communicate with one another about government and political matters. They must be able to receive information, exchange arguments, criticise those who govern them, discuss public policy and form judgments about those who seek to represent them. Political communication is therefore protected because the constitutional system itself requires it.
The freedom begins with this relationship between communication and electoral choice. The Constitution assumes that the people are capable of choosing their representatives. But that assumption would be difficult to sustain if the people could not obtain and exchange information about the matters upon which they are expected to vote. Political communication is therefore not protected merely because speech is valuable in the abstract. It is protected because communication about government is necessary to the functioning of representative and responsible government.
Once that idea is understood, the question becomes more complicated. It is relatively easy to identify a law that directly prohibits political speech. If Parliament enacted a law providing that a person could not publish criticism of the government, the burden upon political communication would be obvious. But constitutional disputes rarely present themselves in such simple terms. Parliament may enact a law for an apparently legitimate purpose that has nothing on its face to do with political speech. A law may regulate property, privacy, surveillance, political donations, public order or trespass. The law may never mention politics at all. Nevertheless, its practical operation may make political communication more difficult.
It is at this point that the concept of the burden becomes central.
The question is no longer simply whether somebody has been prevented from speaking. The Court must first identify what political communication is taking place and then determine whether the law has effectively burdened that communication. This is the point at which the implied freedom is engaged.
Consider political protest. A person enters private property to obtain information about an issue of public concern and then publishes that information to the public. The law may be directed at trespass. Its immediate concern may be protecting property rights rather than suppressing political debate. Yet if the consequence of the law is that the person cannot obtain and communicate information of political significance, a constitutional question arises. The Court must determine whether the law's operation has burdened political communication.
The same problem appears in relation to political donations. A donation is not itself necessarily a political statement. Nevertheless, political organisations require resources to communicate with voters. Advertising, campaigning and political organisation depend upon financial resources. A law limiting political donations may therefore affect the capacity of political actors to communicate. The law is regulating money, but the constitutional question is concerned with what that regulation does to political communication.
This illustrates an important feature of the implied freedom: the law does not have to regulate speech directly in order to burden political communication.
The freedom may therefore be engaged by the way in which a law operates upon the circumstances in which political communication occurs. Communication does not happen in a vacuum. It requires people, information, resources, places, technologies and opportunities to reach an audience. A law affecting one of those things may consequently affect the constitutional freedom.
This is where Patrick Graham's analysis becomes particularly significant. In Burdening the Implied Freedom of Political Communication: Method, Ideas, and Disagreement, Graham draws attention to the fact that the High Court's disagreement is not confined to the later question of whether a burden is justified. There is disagreement much earlier in the analysis about what it means to say that political communication has been burdened.
That disagreement matters because the way the Court defines the burden can determine the rest of the case.
Imagine that a law prevents a particular method of obtaining information. One judge might regard the restriction as a law regulating conduct, with political communication remaining possible through other lawful means. On that view, the burden upon political communication may be slight or perhaps nonexistent. Another judge might focus on the particular information that the law prevents from being obtained and communicated. If that information is important to public debate and electoral choice, the judge may regard the restriction as a substantial burden upon political communication.
The disagreement is therefore not simply about whether the law says, “you cannot speak”. It is about how the Court understands the relationship between conduct and communication.
That distinction is crucial because political communication often depends upon conduct that is not itself expressive. A journalist must obtain information before publishing it. A political organisation must organise before campaigning. A protester may need to occupy a particular location to make a message visible. An organisation may need financial resources before it can communicate with the public. If constitutional protection were confined to the final act of speaking, Parliament could potentially regulate the circumstances surrounding communication without those regulations being recognised as burdens upon the freedom.
But the opposite position creates a different difficulty. If every law affecting conduct that happens to have some political significance were treated as a burden upon political communication, the implied freedom could become an extraordinarily broad constitutional restriction upon legislative power. Laws concerning property, contract, public order, criminal conduct and many other areas could potentially be challenged simply because the person affected wished to use the relevant activity for a political purpose.
The constitutional problem therefore lies in identifying the point at which an ordinary law becomes a burden upon the constitutional freedom.
This is why the importance of the particular communication matters.
The implied freedom is concerned with communication that relates to government or political matters because that communication assists citizens in making electoral choices. Some forms of communication may have a particularly close relationship with that constitutional function. Others may have a more remote connection. The Court therefore has to consider not only whether communication has been affected, but what kind of communication has been affected and how the restriction operates upon it.
Graham argues a more maximalist conception of the impact and importance of political communication. The basic idea is that the Court should take seriously the broad range of communication that contributes to the capacity of citizens to make informed political choices.
That does not mean that every restriction upon political activity is unconstitutional. It means that the Court should not define the burden so narrowly that important restrictions disappear from constitutional scrutiny simply because Parliament has framed them as regulations of conduct rather than speech.
Once a burden has been identified, however, the existence of that burden does not end the constitutional inquiry.
The Constitution does not require that every law affecting political communication be invalid. Political communication exists alongside other legitimate governmental interests. Parliament may need to protect privacy, prevent corruption, protect property, maintain public safety, regulate elections and pursue many other objectives. The implied freedom therefore requires a balance between the constitutional importance of political communication and the legitimate purposes pursued by legislation.
This is where the modern doctrine of proportionality becomes important.
The Court asks whether the law's purpose is legitimate within the constitutional system and whether the means chosen by Parliament bear an appropriate relationship to that purpose. The analysis developed through Lange, McCloy and subsequent cases asks whether the law is suitable, necessary and adequately balanced in light of the burden it imposes upon political communication.
But even proportionality cannot entirely escape the earlier question of what the burden actually is. To decide whether a restriction is proportionate, the Court must have some understanding of what has been restricted and how seriously it has been restricted. A law that prevents a trivial form of political communication presents a different constitutional problem from a law that prevents citizens from accessing information central to an electoral controversy.
The importance of the burden therefore enters the analysis at a fundamental level.
This can be seen particularly clearly in McCloy v New South Wales. The legislation restricted political donations, including donations by property developers. The law did not prohibit political speech. Nevertheless, the majority recognised that restrictions on political donations could burden political communication because financial resources facilitate political campaigning and communication. The question then became whether that burden could be justified by the legitimate purposes pursued by the legislation.
The case demonstrates the two stages working together. First, the Court recognises the relationship between the law and political communication. Second, it asks whether the resulting burden is constitutionally permissible.
A similar problem arises, in a different form, in Farm Transparency International Ltd v New South Wales. There, the Court considered legislation dealing with surveillance and material obtained through unlawful surveillance. The material could be used to communicate information about matters of public and political concern. The legislation therefore raised the difficult question of whether Parliament could regulate the conduct through which political information was obtained and published without impermissibly burdening political communication.
The case illustrates why the implied freedom cannot be understood simply as a rule protecting spoken words. The constitutional question can arise much earlier, at the point where information is gathered, where political activity takes place, or where the means of communicating with an audience are regulated.
The deeper issue, however, is what all of this tells us about the nature of the freedom itself.
If political communication is constitutionally protected because it enables electoral choice, then the freedom must be understood in light of that purpose. The citizen does not arrive at the polling booth suddenly equipped with the information necessary to make a constitutional choice. Political understanding is developed through an ongoing process of communication. Citizens hear arguments, encounter criticism, receive information, challenge one another's views and assess the conduct of those who seek political power. Political communication therefore exists as a broader environment rather than simply as an isolated act of speech.
This is where Graham's argument provides a useful way of understanding the divisions within the High Court. The Justices may agree that representative government requires political communication, yet disagree about what follows from that proposition. A more restrained approach may focus closely on whether the law directly interferes with communication. A broader approach may place greater emphasis on the conditions that make meaningful political communication possible.
The difference can be subtle but consequential.
Suppose a law prevents a political organisation from obtaining a particular piece of information. If the Court views the freedom narrowly, it may say that the organisation remains free to speak about the political issue in other ways. If the Court views the freedom more broadly, it may ask whether the prohibited information itself contributes significantly to the public's ability to understand and evaluate the issue. The same legislation can therefore appear very different depending upon one's conception of the constitutional function of political communication.
That is ultimately why the question “what burdens the freedom?” cannot be separated completely from the question “why does the Constitution protect political communication?”
The answer to the first question depends, at least in part, upon the answer to the second.
The implied freedom is therefore best understood as a constitutional protection operating within a particular institutional setting. It does not give a person an unrestricted licence to communicate politically in whatever manner they choose. Nor does it invalidate every law that makes political communication more difficult. Rather, it operates as a constraint upon Parliament where legislation burdens the communication necessary for Australia's system of representative and responsible government, unless that burden can be justified consistently with the Constitution.
The journey through the doctrine consequently begins not with the individual speaker, but with the constitutional system.
The people are to choose their representatives. To make that choice meaningful, they must be able to communicate about government and politics. Laws may affect that communication, sometimes directly and sometimes indirectly. When they do, the Court must decide whether there is a constitutional burden. To answer that question, the Court must identify the communication, understand how the law affects it and assess the significance of that communication to electoral choice. Only then can it properly ask whether the burden is justified.
The most difficult part of the doctrine therefore occurs at the beginning, not the end.
Before the Court can ask whether Parliament's restriction is proportionate, it must first decide what has been restricted.
And before it can decide what has been restricted, it must have some conception of what political communication means within representative government.
That is the significance of Graham's contribution. His analysis demonstrates that the apparent simplicity of the implied freedom, political communication must not be impermissibly burdened, conceals a deeper constitutional disagreement about method, about the nature of political communication, and ultimately about the role that communication plays in enabling the people to govern themselves.
In that sense, the implied freedom is not merely about protecting speech. It is about protecting the constitutional conditions under which democratic choice can occur.
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