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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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