Australian Capital Television v Commonwealth: 30 Years of the Implied Freedom of Political Communication

In this seminar, our panellists critically reflected upon the development of the constitutional freedom over the last 30 years and shared their thoughts in relation to its future. The panel consisted of barrister Kathleen Foley S.C., Professor Dan Meagher (Faculty of Business and Law, Deakin University) and Professor Adrienne Stone (Melbourne Law School, University of Melbourne). Professor Michael Crommelin AO (Melbourne Law School, University of Melbourne) chaired the event.

2022 marks the 30th anniversary of the Australian High Court’s judgment in Australian Capital Television v Commonwealth, the first case in which a majority of the High Court recognised the constitutional freedom of political communication. Its recognition was, from the beginning, a matter of some controversy. In the 30 years since, the implied freedom has become one of the most litigated aspects of Australian constitutional law and has been applied in contexts as diverse as political protest, defamation law and electoral funding. Nonetheless, the implied freedom remains controversial and disagreement persists as to the legitimacy of the implication and its nature and content.

About the panel

Kathleen Foley S.C. is a member of the Victorian Bar with a broad practice spanning trial and appellate work in commercial, public law and common law matters. Since 2016, she has been recognised annually in Doyle’s “Best Barristers” Guide. Kathleen acted for the State of Victoria in Clubb v Edwards (2019), which involved a constitutional challenge to the State’s legislation creating safe access zones around abortion clinics. Clubb v Edwards is an important case in the development of the implied freedom.

Dan Meagher is a Professor and Chair in Constitutional Law in Deakin Law School. Dan’s research and teaching interests are in constitutional law, freedom of speech and statutory interpretation. He is the editor (with Matthew Groves) of The Principle of Legality in Australia and New Zealand (Federation Press, 2019).

Adrienne Stone is Melbourne Laureate Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School. She researches in the areas of constitutional law and constitutional theory with particular attention to freedom of expression. She is editor (with Frederick Schauer) of The Oxford Handbook on Freedom of Speech (2021).

Michael Crommelin is Zelman Cowen Professor of Law at Melbourne Law School. He was Dean of the Melbourne Law School from 1989-2002, from 2003-2007, and in 2010. He was elected a fellow of the Australian Academy of Law in 2010. His teaching and research interests are in constitutional law, mineral law and petroleum law.

View the webinar recording