Australia

Abstract

Abstract Australia provides a compelling example of how the presence or absence of constitutional text need not prefigure whether the domestic courts will exercise a power of judicial review to safeguard expressive freedom. Even though Australia lacks a constitutional free speech guarantee, in 1992, Australia’s highest judicial tribunal and the institutional equivalent of the Supreme Court of the United States, the High Court of Australia (HCA) has recognized an “implied freedom” of political and governmental communication as a structural necessity in a polity that practices democratic self-government. This jurisprudential innovation demonstrates with convincing clarity that the absence of a constitutional text safeguarding the freedom of speech, press, assembly, petition, and association need not be an insurmountable obstacle to the exercise of judicial review to protect these expressive freedoms. Going forward, the HCA must decide if it actually means what is has been saying since handing down its landmark decision in ATV, in 1992, about the necessary relationship between the freedom of speech (and presumably other expressive freedoms) and the practice of democratic self-government. If expressive freedoms are, in fact, essential to maintaining free and fair elections, then Australia’s implied freedom of political and governmental communication should be expanded and extended to reach any and all communications that help facilitate informed and engaged citizenship by voters and expressly reach any and all forms of expressive activity (including speech, but also including assembly, association, petition, and a free press) that voters seek to utilize. Even if the freedom of speech in Australia is not a personal right, as it is in the United States, Israel, South Africa, and the United Kingdom, a commitment to democracy and democratic discourse requires judicial recognition and protection of all modalities of expressive freedom.