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47 Monash U. L. Rev. 1 (2021)

handle is hein.journals/monash47 and id is 1 raw text is: WHITHER THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION? THE HON GEOFFREY NETTLE AC* In recent years, the implied freedom of political communication has become one of the more frequently litigated constitutional issues in the High Court of Australia. That is remarkable given the relatively recent recognition of the implied freedom, the differences of judicial opinion that attended its formulation, and forceful criticisms of the doctrine. Critics have said that the doctrine is the product of impermissible judicial activism, and so uncertain and ambiguous in its application that it has failed and will go on failing. This paper explains why it might be thought that, despite such differences of judicial opinion and the difficulties and uncertainties that are said to have attended the doctrine's application, the implied freedom of political communication is soundly based in accepted constitutional principle. It also explains how the recent invocation ofstructured proportionality analysis as a test of 'appropriateness and adaptedness' is likely to result in increased certainty in the doctrine's application. I INTRODUCTION Last year, in the midst of a matter about a public servant with a penchant for publicly criticising her employer,' it occurred to me that the implied freedom of political communication has become one of the more frequently litigated constitutional issues in the High Court of Australia. And that is surely a remarkable development given the implied freedom's relatively recent and problematic gestation. Some academic commentators, like Professor James Allan and Professor Jeffrey Goldsworthy, have criticised the doctrine as the product of impermissible judicial activism that flies in the face of the framers' intention to exclude express * Justice of the High Court of Australia, 2015-20. This paper was originally presented as the Monash University Lucinda Lecture, 27 August 2020. 1 Comcare v Banerji (2019) 267 CLR 373 ('Banerji').

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