Political communication and voting

The idea

The freedom protects communication on government and political matters. It is drawn from the text and structure of the Constitution. Sections 7 and 24 require the Senate and the House to be directly chosen by the people, s 64 requires Ministers to sit in Parliament and s 128 fixes the popular method of amendment. Free communication is an indispensable incident of representative and responsible government, so it is protected only to the extent those sections establish it.

The freedom is a shield and not a sword. Sections 7 and 24 confer no personal right but preclude the curtailment of the protected freedom, so it works to invalidate a law rather than to found a cause of action. It binds State laws as much as Commonwealth laws, and the purpose a law states for itself is not conclusive of the true purpose a court will draw from its terms and context.

A challenge to an ordinary law runs a structured test in three stages. The first stage asks whether the law burdens political communication. The second asks whether its purpose is legitimate. The third asks whether the law is proportionate to that purpose. A challenge to a voting disqualification runs a separate two step test under Roach.

Where it comes from

Lange is the anchor. It affirmed the freedom first recognised in ACTV, where Mason CJ held that representative and responsible government require freedom of communication on public affairs and political discussion. Lange settled that the freedom is a limit on power and not a personal right, and it set the original two part test.

The test was then reworked case by case. Coleman reformulated the second limb so that both the end of a law and the manner of pursuing it must be compatible with the system. McCloy added structured proportionality as the third stage, adopting suitability, necessity and adequacy as the measure of a legitimate law. Clubb reaffirmed that method and applied it to a safe access zone. The freedom binds the States as well as the Commonwealth.

How it is examined

The freedom is live in most final papers, appearing in five of the seven finals from 2019 to 2025 at 15 to 25 marks. Voting appeared once in 2025 for 5 marks. A problem gives a law and a set of facts and asks whether the law is valid. The marks sit in three places, characterising the burden, resolving the contested purpose and testing necessity. Keep the foundation and the methodological dissent to a line each.

1. Characterise the burden concretely, naming what the law prohibits and supporting it from the facts.
2. Identify the purpose and decide whether it is legitimate in both its end and its manner.
3. Calibrate the justification to the weight of the burden before testing proportionality.
4. Run suitability, necessity and adequacy, and spend the most words on necessity.
5. For a disqualification from voting, switch to the Roach test and leave the three stage test aside.

How to argue it

Lead with the burden. The plaintiff will argue that the law burdens political communication in its terms, operation or effect, characterised broadly. A burden is made out even where the law restricts only some political communication or imposes only a little burden. Where the speech looks apolitical and personal the State will argue there is no burden at all, as the clinic counselling in Clubb was treated as qualitatively different from agitation for legislative change. This is the defendant's opening move, and it fails at once where the topic is plainly political.

On purpose the contest is whether the end is compatible with the system. The State will point to a legitimate purpose such as preventing corruption, which enhances rather than burdens representative government, or protecting the privacy and dignity of people held captive by an uninvited message. The plaintiff will answer that securing the civility of discourse is not legitimate. Insult and invective are an inevitable part of Australian political debate. Whether preventing serious offence in the private sphere is legitimate is unsettled, so both views should be argued before a conclusion is reached.

Before proportionality the justification must rise to meet the burden. A law that targets particular communications by their content or the identity of the speaker is a heavier and more suspect burden, and it demands a stronger justification than a general and neutral restriction. The structured test then asks three questions. The law is suitable if it is rationally connected to its purpose. It is necessary unless an obvious and compelling alternative of significantly lesser burden is equally practicable and available. It is adequate in its balance unless the burden is manifestly disproportionate to the purpose, a conclusion not lightly reached.

Gageler and Gordon JJ reject structured proportionality as the exclusive method and prefer a calibrated scrutiny, so note their view in a line and then apply the structured test. For a voting disqualification the method changes. The plaintiff will accept that ss 7 and 24 protect universal adult suffrage, then argue that Parliament lacks a substantial reason proportionate to culpability. A disqualification for serious offending can be a substantial reason, but a ban that sweeps in every prisoner regardless of the offence or the term imposed casts the net too wide. The measure of culpability is the sentence actually imposed rather than the maximum penalty available.

Practice problems

One hundred exam-style problems across twelve topics. Pick a topic, read the problem, write your own answer in IRAC, then reveal the Pass and H1 exemplars and the examiner's comments. Step through in order or jump to a random one. Nothing you type is saved or sent anywhere.

The trap

The costliest mistake is to resolve the purpose stage too quickly. Preventing mere offence and securing civility is not a legitimate purpose, yet some judges accept that protecting the private sphere from serious offence is legitimate. Monis was affirmed on an even division, so there is no majority ratio to lean on. Argue the illegitimate purpose of civility, then argue the private sphere view in the alternative, and reach a conclusion on the better view. A second costly error is running the full three stage test on a voting disqualification, where Roach and the substantial reason test are all the marks reward. One warning on the franchise cases. Murphy concerns the closure of the electoral rolls, so the prisoner franchise and the survival of the three year disqualification line belong to Roach.

Key authorities

• Lange affirmed the implied freedom drawn from ss 7, 24, 64 and 128, set the two part test, and confirmed the freedom operates as a shield rather than a personal right.★
• ACTV Mason CJ held that representative and responsible government require freedom of communication on public affairs and political discussion.
• Unions NSW confirmed the freedom binds State laws, and that a law's stated purpose is not conclusive of its true purpose.★
• Coleman reformulated the second limb so both the end and the manner must be compatible, and held that securing civility of discourse is not a legitimate end.★
• Monis held that a little burden still needs justification, and split on whether protecting the private sphere from serious offence is legitimate.★
• Levy held that public safety is a legitimate end for a law regulating political protest.
• McCloy adopted structured proportionality as the third stage, with preventing corruption a legitimate purpose that enhances the system.★
• Clubb reaffirmed the structured test and upheld a safe access zone on privacy and dignity.★
• Brown held the justification must rise to meet the burden, and that a law which deters protest of all kinds fails adequacy.
• Roach held that ss 7 and 24 protect universal adult suffrage, so a disqualification needs a substantial reason proportionate to culpability.★