A Seductive Plausibility: Freedom of Speech in the Constitution

Abstract

The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth or fifth logical extension occurs. Each step, when taken, appeared a reasonable step in relation to that which proceeded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the 'line drawing' familiar in the judicial, as in the legislative process - 'thus far but not beyond'.

This article closely scrutinises the reasoning adopted by the High Court of Australia in several cases in which it has held that the Australian Constitution contains within it an implied freedom of political communication inferred, supposedly, from the Constitution's provision for a system of representative democracy.

To this end, the article offers a limiting theory about the use of implications and inferences in constitutional interpretation, based on several values generally associated with constitutionalism and the rule of law. In so doing, the article also discusses the way in which the jurisprudence of other countries, in particular Canada and the United States, influenced the reasoning of the High Court in these cases.

Keywords: Freedom of Speech, Political Communication, Australian Constitution, Constitutional Implications