Freedom of Expression under the Australian Constitution

Freedom of expression is protected in all modern democratic constitutions. At first glance, the Australian Constitution seems to be an exception. The absence of a provision protecting freedom of expression is just one aspect of a widely noted more general feature – the sparsity of protection for rights. Yet the full picture is considerably more complicated. Freedom of expression has long had a foothold in Australian constitutional law and in 1992 the High Court of Australia developed a doctrine known as ‘the freedom of political communication’ which has become one of the most important – and most litigated – features of Australian constitutional law. Freedom of expression under the Australian Constitution takes an unusual form. It is unwritten (or ‘implied’) and limited to ‘political communication’ rather than expression generally. The High Court of Australia has also insisted that the doctrine is ‘not a personal right’ but merely a freedom from interference. This paper will outline the freedom of political communication as it has developed over the past 27 years and identify its major themes. In doing, so the paper will also consider the extent to which the freedom of political communication resembles an explicit and generally expressed right of freedom, commonly found in other constitutions. It will show that, despite its unusual form, in many respects the Australian law of freedom of political communication is indistinguishable from a general express guarantee of freedom of expression.