The Limits of Constitutional Text and Structure Revisited

Abstract

In Lange v Australian Broadcasting Corporation (‘Lange’) the High Court insisted that the freedom of political communication was confined by the ‘text and structure’ of the Constitution. I have argued elsewhere that the idea that ‘text and structure’ alone determine the application of the freedom of political communication is mistaken. That claim is descriptive rather than normative. I argue that, whatever the merits of the idea, is impossible for courts to adhere to this method. Further, because the ‘text and structure’ method is likely to obscure the true bases of decision, judicial insistence on the method is likely to be counter-productive. The argument has been the subject of a response from McHugh J in Coleman v Power. His Honour’s attention to my ideas is extremely generous but in this article I revisit, and defend, my argument.

Keywords: Constitutional Interpretation, Freedom of Political Communication, Constitutional Text and Structure, Structural Inference, Lange v Australian Broadcasting Corporation, Coleman v Power

JEL Classification: K00, K19, K39