'Insult and Emotion, Calumny and Invective': Twenty Years of Freedom of Political Communication

Abstract:     
This article was written for a symposium marking twenty years of constitutional protection of freedom of political communication in Australian constitutional law. The protection of political communication under the Australian Constitution is commonly regarded as relatively weak. While I do not as a general matter dispute this characterization of the law, this article will strike a different note. Rather than dwelling on the weaknesses of the doctrine I will draw attention to a strand of reasoning in the High Court’s decisions on freedom of political communication that stands in marked contrast to the general trend. In particular, I will examine Coleman v Power, which appears to establish that the law has no legitimate role in ‘civilising’ public debate. As I have noted previously, moreover, this ‘anti-civility’ stance has some surprising affinities with aspects of the law of the First Amendment. However, in this article however it is suggested that the reasoning of some members of the High Court in Coleman strongly suggests that Australian values inform the freedom of political communication. In this spirit, I close the article by suggesting that Coleman might be read as showing a nascent but peculiarly Australian disregard for civility in political discussion.

Number of Pages in PDF File: 20

Keywords: constitutional law, political communication, Australia

JEL Classification: K19, K39

Accepted Paper Series