Whither the Implied Freedom of Political Communication?

In recent years, the implied freedom of political communication has become one of the more frequently litigated constitutional issues in the High Court of Australia. That is remarkable given the relatively recent recognition of the implied freedom, the differences of judicial opinion that attended its formulation, and forceful criticisms of the doctrine. Critics have said that the doctrine is the product of impermissible judicial activism, and so uncertain and ambiguous in its application that it has failed and will go on failing. This paper explains why it might be thought that, despite such differences of judicial opinion and the difficulties and uncertainties that are said to have attended the doctrine’s application, the implied freedom of political communication is soundly based in accepted constitutional principle. It also explains how the recent invocation of structured proportionality analysis as a test of ‘appropriateness and adaptedness’ is likely to result in increased certainty in the doctrine’s application.