The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication

Abstract

In Lange v Australian Broadcasting Corporation, the High Court announced a more limited view of the freedom of political communication, under which the freedom is to be interpreted solely by reference to constitutional text and structure. This article shows that this interpretive method is unsustainable. It does so by considering an undecided doctrinal issue: the formulation of a test for determining the validity of laws affecting political communication. This article shows that two approaches, a single proportionality test and a 'two-tiered' test, which applies stricter scrutiny to some cases, have been vying for ascendancy in the High Court. A solution to this problem is suggested. It is argued that the Court should prefer the proportionality test as the freedom of political communication develops but ultimately replace this with a more defined body of rules. However, the central point of this article is that the choice between these standards of review cannot be made simply by reference to the text and structure of the Constitution. Moreover, whichever approach prevails, the development of the standard of review will require reference to values and principles external to the Constitution. Thus, no matter how the Court proceeds, it will have to depart from the Lange interpretive method.

Keywords: constitutional law, High Court, political communication

JEL Classification: K00, K19, K39