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Constitutional implications revisited
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Journal Article
Constitutional implications revisited
2011
Overview
It is intriguing how lawyers react so differently to very inventive judicial decisions. When I first heard about the High Court's recognition, in ACTV and Nationwide News,1 of an implied freedom of political communication, I was somewhat shocked. Any purported discovery of a major unwritten constitutional principle that was not even noticed by our best legal minds for nearly a century is inherently suspicious. It seemed obvious to me that the Court had changed the system of government established by our Constitution in a substantial way, without asking me or my fellow Australians whether we approved of the change, as required by s 128. When I read the judges' reasoning, I was not persuaded that they had identified a genuinely 'necessary' implication that no-one (except Lionel Murphy) had previously noticed. I explained why I was not persuaded in print.
