A Comment on How the Implied Freedom of Political Communication Restricts Non-Statutory Executive Power

• Author: Gerard Carney
• Position: Professor of Law, Curtin Law School, Perth, Western Australia
• Pages: 255-274

A COMMENT ON HOW THE IMPLIED FREEDOM

OF POLITICAL COMMUNICATION RESTRICTS

NON-STATUTORY EXECUTIVE POWER

Gerard Carney*

This comment argues that the decisions of the Executive at all levels of Australian

government need to be consistent with the implied freedom of political

communication. Hence the test so far propounded for an infringement of the

implied freedom needs to be adjusted to refer not just to a ‘law’ but also to any

exercise of non-statutory executive power whether an exercise of royal prerogative

power or other non-statutory capacity of the executive. Although there are limited

circumstances when such an exercise of executive power affects the legal rights and

duties of citizens, when this occurs, the implied freedom offers protection.

I INTRODUCTION

One intriguing aspect of the implied freedom of political communication

derived from the

Commonwealth Constitution

remains unresolved: how, if at

all, does this constitutional implication apply to the exercise of executive

power? The High Court has often described the implied freedom as a

restriction on both legislative and executive power.1 Yet its decisions have only

concerned an exercise of legislative power. This may account for the fact that

the Court’s various tests for an infringement of the implied freedom only assess

the validity of ‘a law’.

This comment explores how the implied freedom might apply as a

restriction on the executive power of the Commonwealth and of the States, in

particular, its non-statutory scope. A complicating factor in this analysis is the

High Court’s insistence that the implied freedom operates only as a negative

right and not as an individual or positive right. Nonetheless, the inclusion of

executive power in the scope of the implied freedom is not mere rhetoric – it

ensures that an actual exercise of executive power must be consistent with the

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* Professor of Law, Curtin Law School, Perth, Western Australia.

1 Some recognition also given to its application to judicial power: see, eg, Deane J in

Theophanous v

Herald and Weekly Times Ltd

(1994) 182 CLR 104 at 164.

University of Western Australia Law Review

Vol 43(2):255

256

constitutional freedom to criticise and comment on the institutions of both

federal and state governments.

II IMPLIED FREEDOM AS A RESTRICTION ON EXECUTIVE POWER

The first judicial recognition of the implied freedom as a restriction on both

legislative and executive power seems to have been given by Brennan J in

Nationwide News Pty Ltd v Wills

:

I would state the governing implication in these terms: the

Constitution prohibits any legislative

or executive

infringement of the

freedom to discu ss governments and governmental institutions and

political matter2

His Honour may have included executive power because of his earlier comment

that the ‘principles of [representative government] and the principle of

responsible government are constitutional imperatives which are intended …

to make both the legislative and executive branches of the government of the

Commonwealth ultimately answerable to the Australian people.’3

The inclusion of executive power in this context is consistent with its

inclusion in the scope of other constitutional restrictions which are referred to

in

Nationwide News

. Brennan J referred to the freedom of interstate trade,

commerce and intercourse under s 92, as redefined in

Cole v Whitfield,

4 as

preventing both ‘legislative and executive interference’.5 Deane and Toohey JJ

also referred to this restriction as well as those under the

Melbourne

Corporation

6 principle and Chapter III as restrictions on both legislative and

executive power. No express reference is made in

Australian Capital Television

Pty Ltd v Commonwealth

7 to the implied freedom of political communication

as a restriction on executive power as such. Mason CJ merely refers to the

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2 (1992) 177 CLR 1, 50-1 (emphasis added).

3 Ibid 47.

4 (1988) 165 CLR 360.

5 (1992) 177 CLR 1, 54.

6

Melbourne Corporation v Commonwealth

(1947) 74 CLR 31.

7 (1992) 177 CLR 106.