Public Law: The Implied Freedom of Political Communication and Executive Power

Thursday June 8, 2017

Joshua Forrester, PhD Candidate at Murdoch University, joined Ashleigh Tesluk to discuss the highly topical implied freedom of political communication's effect on executive action.

You can hear more from Joshua at Junes Public Law: Limits on Powers seminar, being held on Wednesday 14 June at Perth's Parmelia Hilton.

Could you tell us a little bit about yourself, Joshua?
I graduated with first class honours in law from the University of Western Australia. I practiced primarily in the field of commercial litigation. Presently, I am a PhD candidate in law at Murdoch University, and my thesis is in the field of human rights. I am the lead author of No Offence Intended: Why 18C is Wrong. This book argues that, while Australia should have a law against racial hatred, s 18C of the Racial Discrimination Act 1975 (Cth) is too broad and too vague to be constitutional. Section 18C is not supported by the external affairs power, and impermissibly infringes the implied freedom of political communication. This book is listed as one the Spectator magazine's best books of 2016, and has been favourably reviewed in The Australian and the Spectator. Along with my fellow authors, I made submissions to and appeared before the Parliamentary Joint Committee on Human Rights' recent inquiry into s 18C. Our submissions and evidence were referred to in the final report of this committee. We are also due to appear before the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee's inquiry into Freedom of Religion and Belief.

Can you explain the premise of your topic and why you think it is important right now?
The implied freedom of political communication is now a well-accepted limitation on legislative power. However, case law has not given as much consideration to the implied freedom of political communication's effect on executive power. Executive action may affect communication about government and political matters as much as, if not more than, legislation. Hence, the implied freedom of political communication's effect on executive action is topical.

How far reaching is the implied freedom of political communication and executive power and who is affected?
I argue that the implied freedom of political communication is a strong and wide-ranging freedom. This results primarily from the plenary powers conferred on Australian Parliaments and the sovereignty of the Australian people. Australian Parliaments have extremely broad powers to legislate. Given that they elect representatives to Australian Parliaments, the Australian people's scope to discuss past or proposed laws must be even broader. These principles apply by extension to the executive, which is charged with executing laws. That the legislature and the executive may infringe the implied freedom of political communication is something of concern to every Australian.

What’s a key consideration to keep in mind when considering limits on power?
With respect to the implied freedom of political communication, any exercise of executive power should not be disproportionate to the purpose for which the power is exercised. In practice, whenever a proposed executive action may affect freedom of expression, the executive should err on the side of this freedom.

What are some of the trends and developments you see ahead in Public law /Executive power generally?
Unfortunately, I foresee increasing complexity in both legislation and exercises of executive power. This exacerbates the risk of Australian citizens running afoul of complex, vague laws. One of the essential requirements of the rule of law is certainty: people must know where a legal line is drawn so they can avoid going over that line and incurring legal liability.
If anything, there should be a concerted effort to (i) reduce the number of statutes and regulations; and (ii) simplify statutes and regulations. Put simply, liberty requires clarity.


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