The High Court has recognised an implied freedom of political communication. The same constitutional principles could support a broader guarantee that Australian elections themselves must be free and fair.

Past and present High Court challenges to Victorian and Commonwealth electoral laws about political donations and election campaign spending focus on whether they wrongly impact on freedom of communication. They should be able to question directly whether the laws threaten free and fair elections.

More than 30 years ago, the High Court unveiled an implied constitutional freedom of political communication. It was controversial at the time for the court, in effect, to create a new right to political free speech. But it is now well and truly part of Australia’s political and legal system.

In my view that new ‘right’ or ‘freedom’ needs to be expanded. The same sections of the Constitution on which the High Court relied to recognise free political communication could be (and should be) the basis of an implied right to – that is, a guarantee of – free and fair elections.

The Constitution contains many sections that mention elections. But none of them specifically require that elections must be fair and free. Perhaps that should be implied in any event. But the High Court has been unwilling to take that step.

The majority of judges in the free speech cases in 1992 based the recognition (or, as some critics maintain, creation) of the freedom of political communication on earlier decisions of the High Court to the effect that the Constitution established a system of representative government which, as the then chief justice Sir Anthony Mason put it, meant that MPs and the government were “accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act”.

He said “indispensable to that accountability is freedom of communication, at least in relation to public affairs and political communication … Absent such a freedom of communication representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.”

The case the High Court was considering in 1992 was a challenge to a law banning political advertising on television during federal elections and requiring free time to be given to recognised political parties.

The High Court limited itself to the specific issues in the case concerning political communication. Judges normally avoid dealing with broader issues that might arise from a case, limiting themselves to what needs to be determined to decide the matter that is before the court. The Mabo case, recognising native title, was arguably an exception to this rule.

However, the recognition by a majority of judges in the free political speech case that the Constitution established a system of representative and responsible government does open the way to further implications – were the court to venture there.

In particular, it is arguable that the system of representative government established by the Constitution requires that the elections that are an integral part of that constitutional system should be free and fair.

If elections are not free and fair, government may not be representative – and probably won’t be. Free and fair elections are a necessary (though not sufficient) prerequisite for fully representative government.

Freedom of political communication is only one part of an electoral system that is fair and free. Freedom of political communication may also be important in other, non-electoral contexts. A law restricting who can provide political donations would fall within the category of laws about elections. On the other hand, laws restricting the display of Nazi symbols or antisemitic slogans would not necessarily concern elections.

The test of validity of a relevant law applied by the High Court in dealing with claims involving the implied freedom has three parts, the first of which shows how broad the scope of the implied freedom has become. The first question the court asks itself is:

“Does the impugned law effectively burden freedom of communication about governmental or political matters in its terms, operation or effect?”

It then asks whether the purpose of the law is legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Finally, the issue is whether the law is reasonably appropriate and adapted to advance that purpose in a manner that is compatible with the maintenance of that constitutionally prescribed system of government.

The laws being challenged that restrict freedom of assembly and speech are significant. Full marks to the High Court for developing this implied freedom and so restricting the powers of state and federal governments in those areas.

But these are the questions that might be asked – should be asked – about laws directly affecting elections. Were that the case, and were the court considering whether a law was curtailing free or fair elections, the first question it would ask would be whether the impugned law effectively burdened free and fair elections in its terms, operation or effect.

The second and third questions – about legitimate purpose and compatibility with the maintenance of the constitutionally prescribed system of government – would follow.

Nothing revolutionary. Merely dealing with an additional basic issue that arises as a result of the Constitution establishing a system of representative government – which should not be able to be subverted through election laws that do not deliver, as Sir Anthony Mason might have put it, “government … that would cease to be truly representative”.

The views expressed in this article may or may not reflect those of Pearls and Irritations.