Could the Implied Freedom of Political Discourse Protect the Speech of a Delisted Anglican Minister?

Abstract

Could the implied freedom of political discourse protect the expression of a minister of religion, who the Sydney Anglican Diocese declined to relicense because of his expressing views on marriage equality? While it may be thought that, typically, ‘burdened’ expression about contemporary ‘political’ topics falls within the protective scope of the implied freedom of political discourse under Australia’s Constitution, this article challenges that understanding. First, can speech be constitutionally ‘political’ and therefore fall within the protective scope of the implied freedom of political discourse if the expression is about hermeneutics? Secondly, can the implied freedom protect speech when the relevant expression is not burdened by a law but is instead restricted by a church decision? Thirdly, and relatedly, is there a constitutional rule or principle under Australian law which would cause Australian courts to be reluctant to intervene in decisions of churches, even on ‘political’ topics?