Sir Anthony and the Implied Freedom of Political Communication
in Dynamic and Principled: The Influence of Sir Anthony Mason (Federation Press, 2022) 196
Posted: 7 Jul 2022
Date Written: 2022
In 1992, the High Court, under the Chief Justiceship of Sir Anthony Mason, started a revolution. That, at any rate, was the view held by some commentators in the wake of the Court’s decisions in Australian Capital Television Pty Ltd v Commonwealth (‘ACTV’) and Nationwide News Pty Ltd v Wills (‘Nationwide News’), in which the Court recognised for the first time an implied freedom of political communication in the Constitution. After a period of uncertainty in the immediate aftermath of Sir Anthony’s retirement, the implied freedom has become a ‘fixed star in our constitutional constellation’. As in many other fields of legal discourse, Sir Anthony’s judgments were, and remain, of central significance to an understanding of the implied freedom.
In this chapter, we trace Sir Anthony’s contribution to the jurisprudence of the implied freedom. We begin by outlining Sir Anthony’s judicial engagements with the implied freedom. We then move to discuss the influence of Sir Anthony’s implied freedom judgments on the development of the freedom, as well as in other areas of constitutional law. What emerges is that Sir Anthony’s judgments, especially his judgment in ACTV, are frequently referred to by the Court – both within the context of the implied freedom and also more generally. And that is so whether or not the justices in question are adherents or critics of structured proportionality. His influence is significant and ongoing, even though the current trajectory of the implied freedom is not identical to his conception of it.
Keywords: Sir Anthony Mason, constitutional law, implied freedom of political communication
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