User:TheMostEver/Freedom of political communication

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Within Australian law, there is no freedom of speech. Instead, the Australian Constitution implies the freedom of political communication through an interpretation of Sections 7 and 24 of the Constitution. An interpretation of Section 7 in the Constitution of Australia states that the senator of each state is to be chosen by the people of that state. A similar interpretation can be found in Section 24 of the Constitution, which states that members of the House of Representatives are to be directly chosen by the people of the Commonwealth. An extrapolation of these statements thus allows the implied concept of free speech to be used.

The High Court often states that implied freedom is not a personal right but rather works as a limitation over executive and legislative power. It does not only cover speech but also non-verbal communications that concern political and governmental matters. Thus implying that the state governments cannot take action or make laws that would therefore infringe upon this freedom.

So, in order to ensure the regulation of a representative and democratic government, it is important to licit the freedom of political communication, as it allows citizens to cast informed votes to establish a fairly elected parliament. Australia's Constitution does not contain explicit provisions protecting individual rights. This omission has led to discussions about the necessity of such protections and the reliance on the implied freedoms, particularly the freedom of political communication.

Background
The well-known case of Australian Capital Television Pty Ltd vs. The Commonwealth. The Australian Capital Television Pty Ltd aimed to get the Political Broadcasts and Political Disclosures Act 1991 declared invalid, as it established that broadcasting of political advertisements was prohibited in the pre-election period. Eventually, it was decided by the majority of the court that the government cannot place restrictions upon political communication, and, therefore, this extended to their power in passing laws under Section 51 of the Constitution, meaning laws that infringe upon the implied freedom are invalid.

Related High Court Decisions

 * Lange v Australian Broadcasting Corporation
 * Theophanous v Herald & Weekly Times Ltd
 * Nationwide News Pty Ltd v Wills

Lange v Australian Broadcasting Corporation
Former New Zealand Prime Minister David Lange's legal challenge against the Australian Broadcasting Corporation (ABC) marked a significant turning point in the jurisprudence surrounding the implied freedom of political communication. In this case, Lange contested remarks made by the ABC about him, prompting the full bench of the High Court to clarify the scope and limitations of the implied freedom.

In its ruling, the High Court emphasised that while the implied freedom of political communication extends beyond the electoral period, ensuring the continuous functioning of democracy, it is not an absolute right. The court articulated that this freedom only applies to matters that are essential for maintaining a representative democracy. Consequently, statements made with malicious intent or devoid of political significance fall outside the domain of this protection.

Lange Test
A legal test called the Lange Test has been developed to make decisions about whether a law or decision of government is incompatible with the Australian Constitution because it burdens political communication. Under case laws imposed by the court, there are three questions to be answered when deciding whether a law infringes on implied freedom:


 * 1) The 'Burden' Question: This question determines whether the law restricts political communication. The test is whether the communication pertains to political or governmental matters, which can include discussions relevant to voting behaviour in elections. However, the definition excludes certain personal communications, such as those related to reproductive choices, as seen in Clubb v. Edwards.
 * 2) The 'Legitimate End' Question: This question decides whether the purpose of the law and the means employed to achieve it are compatible with the constitutional system of the government. So even if a law burdens political communication, it may still be valid if its goal and methods align with the principles of the Constitution. Examples of legitimate ends include preventing physical harm to individuals and protecting reputations and privacy, such as women accessing abortion services. However, certain ends, like maintaining civility in public conflict by prohibiting offensive language, may not be considered, as seen in Monis v. Queen.
 * 3) The 'Reasonably Appropriate and Adapted' Question: This question assesses whether the law is reasonably necessary and adapted to achieve a legitimate end. It involves a proportionality test, considering whether the law is necessary and appropriately balanced in restricting freedom of political communication. The court looks at how well the law fulfils its purpose, whether there are less restrictive alternatives available, and whether the benefits of the law outweigh its restrictions. For example, in Brown v Tasmania, the High Court found that a law prohibiting protest activities on certain land was not reasonably appropriate and adapted because it was vague and unnecessary, with less burdensome alternatives available.

If a law is found to burden political communication, does not proceed to a legitimate end, or is not reasonably appropriate and adapted, it may be deemed invalid under the constitutional test for implied freedom. This framework helps ensure that laws are consistent with the principles of representative democracy and protect fundamental rights to political expression.