Pedestrian Malls, Local Government and Free Speech Policy in Australia

Abstract

Since the 1992 free speech cases in the High Court, which elucidated an implied freedom of political communication in the Australian Constitution, the application of the freedom to speech policy has been seldom explored. This paper examines the scope of the freedom from the perspective of struggles over policy coherence and implementation. I first analyse selected High Court judgments referring to the freedom to establish its scope. Within this context, the regulation of pedestrian malls, both before and after the development of the constitutional doctrine is examined. The evidence suggests that pedestrian malls are regulated by local councils in a manner which restricts free expression on political matters in far-ranging ways. I conclude by highlighting continuities in the practice of speech policy before and after the development of the constitutional doctrine, outlining the limitations of current speech policy despite the elucidation of the constitutional freedom, and arguing that the freedom of political communication currently extant in the Australian polity is partial and unsatisfactory. These conclusions demonstrate policy inconsistency and difficulties in policy implementation of the High Court doctrine.