Burdening the Implied Freedom of Political Communication: Method, Ideas, and Disagreement

This article explores what is driving the many divided decisions reached over recent years by the High Court in implied freedom of political communication cases. Key to that divergence is the remarkable range of approaches taken to the assessment of not only the extent of a particular statutory burden on constitutionally protected political speech but also concerning what types of legislative restriction constitute any such burden in the first place. This article argues that competing ideas on the High Court Bench about the core function of the doctrine are producing starkly different interpretive approaches and outcomes in implied freedom challenges. Further, having first located the doctrine's roots within a framework of Australian constitutional 'legalism' that reflects the primacy of political checks on government power, this article endorses an interpretive model that takes a maximalist view of the impact and importance of strands of political speech on electoral choice.