Australian Politics and Policy - Senior, 2019a

Courts
Perhapsmostcontroversially,andinwhatcanbetermedthesecondmajor
period of constitutional transformation (after the Engineers case and the cases
that immediately followed it), 61 the High Court has more recently found in the
Constitution an implied freedom of political communication 62 and an implied right
to vote. 63 In effect, the High Court has recognised and enforced a constitutional
commitment ‘to certain fundamental freedoms or democratic values’. 64
The High Court’s commitment to such values has seen it find numerous pieces
of legislation invalid. It has, for example, held legislation invalid when it:
• imposed a criminal penalty for publicly criticising the workings of government 65
• limited political advertising while also establishing a system of free political
advertising that favoured the established parties 66
• prevented prisoners subject to relatively short periods of imprisonment from
voting 67
• reduced the period in which voters could enrol to vote after an election had
been called 68
• capped political donations and limited electoral campaign spending. 69
However, as interpreted by the High Court, the commitment to freedom of political
speech and the right to vote is not without limitations. This is evident in a number
of cases where the High Court has chosen not to hold legislation, or the regulations
made under legislation, invalid even though political communication or the right
to vote was or may have been impeded. The court justified these decisions on the
basis that, in the particular circumstances faced, the legislation was a proportionate
or ‘appropriate and adapted’ means of achieving legitimate legislative goals. Such
goals have included:
• protecting the safety of the public 70
• enabling electoral rolls to be up to date prior to the opening of polling 71
• providing limitations on the ability of property developers to make political
donations. 72
61 Roux 2015, 1.
62 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News
PtyLtdvWills(1992) 177 CLR 1.
63 Roach v Electoral Commissioner (2007) 233 CLR 162.
64 Williams, Brennan and Lynch 2018, 1328. See also Patapan 2000.
65 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
66 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
67 Roach v Electoral Commissioner (2007) 233 CLR 162.
68 Rowe v Electoral Commissioner (2010) 243 CLR 1.
69 Unions NSW v New South Wales (2019) HCA 1; Unions NSW v New South Wales (2013) 252
CLR 530.
70 LevyvVictoria(1997) 189 CLR 579.
71 Murphy v Electoral Commissioner (2016) 334 ALR 369.
72 McCloyvNewSouthWales(2015) 257 CLR 178.
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