A Good Time for an Intellectual Stocktake
The Samuel Griffith Society National Conference, Sydney
Chief Justice Gageler kindly calculated in Ravbar v Commonwealth (2025) 423 ALR 241 at [23] that there had been 30 decisions of the High Court that had elaborated on and applied the implied freedom of political communication in the nearly 30 years since Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. That is a very large quantity of stock, although the Chief Justice thankfully did not resort to the cynical maxim (usually attributed to Marshal Stalin) that “Quantity has a quality all its own”. Most of us, including I am sure the Chief Justice himself, would prefer to associate ourselves with Seneca’s view that “It is quality rather than quantity that matters”. What better way would there be to greet the 30th anniversary of Lange’s Case next year than for the High Court to engage in an intellectual stocktake, and consider whether that accumulation of stock is still fit for purpose?
I should make it clear at the outset that, as a matter of principle, I am strongly in favour of the right to freedom of expression and opinion. It is commendably enshrined in Article 19 of the Universal Declaration of Human Rights. I have engaged robustly in that right myself, and it is my practice to encourage my critics to express their views publicly so as to enable public debate. It is, of course, entirely a matter for them as to whether they are prepared to do so, although I do think it is a pity when they forfeit the public contest. For me, the constitutional issue is not so much whether and to what extent we should have a right to free speech, but which branch of government should be paramount or sovereign in determining the metes and bounds of that right. Except in a few limited instances, it is not the function of the Constitution to tell us what is best. The main role of the Constitution is to settle who decides what is best.
Let me identify the current scope of the so-called implied freedom, if only to make sure that we are talking about the same thing, by quoting four of the judges of the High Court in its latest decision on the matter, Hopper v Victoria (2026) 428 ALR 691 at [27] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ):
Whether an impugned law is invalid for impermissibly burdening the implied freedom of political communication falls to be assessed by reference to three well-established questions: (1) Does the impugned law effectively burden freedom of communication about governmental or political matters in its terms, operation or effect? (2) Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? (3) Is the impugned law reasonably appropriate and adapted to advance that purpose in a manner that is compatible with the maintenance of that constitutionally prescribed system of government?
I will spare you the details of the shifting fashions as to whether, and to what extent, that third question depends on so-called “structured proportionality”. Perhaps Canberra, rather than Oxford, is now the place where German theories go to die.
Some powerful objections to that prevailing view have been advanced. I express no opinion on whether those objections should prevail. For the benefit of those who claim to have a tender concern for the conventions of public speaking by judges, I am not to be taken as suggesting that those who favour the implied freedom of political communication as currently framed by the High Court resemble Don Quixote breaking a lance for Dulcinea, or might perhaps be mistaking a barber’s basin for a knight’s helmet. I simply raise the question.
Justice Steward has taken the lead among those currently on the High Court, in expressing those objections with due recognition of the concerns previously expressed by Justices Dawson, McHugh, Callinan and Heydon. I will not overburden this speech with citations, and I offer the following as a summary of the most salient of those countervailing propositions.
First, the very able draftsmen who framed the Australian Constitution and who had a detailed understanding of the First Amendment of the United States Constitution, deliberately decided not to provide for a guarantee (express or implied) of freedom of speech. Rather, they put their trust in the capacity of a democratic society to preserve for itself its own shared values, bearing in mind that we derived our system of representative government from the United Kingdom where democracy did not need to be protected by a written (or at least codified) constitution. To that cast of mind, freedom of speech is not something that needs to be constitutionally guaranteed, but something to be conserved within the institutions, traditions and social values which we have inherited.
Second, the implications which might properly be drawn are limited to those which are necessary or obvious having regard to the express provisions of the Constitution itself. Thus, sections 7 and 24 would justify relatively narrow implications to safeguard the electoral system whereby representatives are “directly chosen by the people”. However, those provisions do not justify an implication of the breadth currently recognised to protect the freedom of political communication generally. Further, the history of the federation for over 90 years since 1901 (and indeed the half-century of representative and responsible democracy before then) does not reveal any such necessity or obviousness.
Third, the implication is too unclear. In particular, the “reasonably appropriate and adapted test” has been described as mysterious, indeterminate and amorphous. Further, the divergence of views in the High Court concerning the tests for the application of the implied freedom has been said to illustrate its tenuous nature.
Fourth, questions of reasonableness and legitimacy are said to be matters for Parliament not the courts, and the nature of the debate in the various cases has been described as more parliamentary than judicial.
Let me expand on that last point, because it leads directly to why the timing is right to take stock of the implied freedom. The Constitution has always intended that there be judicial review of the constitutionality of legislation, following Marbury v Madison (1803) 5 US 137 in the United States. However, the High Court was never envisaged to be a supra-legislative body sitting above Parliament, ruling on grand philosophical principles such as those found in the United States Constitution. The fact that the High Court has the last word on questions of constitutionality has been said to require a large measure of self-restraint by unelected and unremovable judges. There is a real question in relation to the implied freedom as to whether the High Court is assuming essentially legislative functions under the guise of a supposed constitutional principle. There are those who contend that, in cases of real doubt as to whether the High Court is claiming power which appears to belong to elected representatives, judges with a genuine concern for the safeguarding of democratic values should be inclined to a more constrained and passive view of their constitutional function.
The shift in power from Parliament to the courts is one of the objections often raised to the constitutional recognition of basic human rights. Another is the historical phenomenon that the identification of those rights tends to be time-bound, in that they reflect the views prevailing at the time of their original recognition. The right to bear arms in the Second Amendment to the United States Constitution provides a stark illustration. Those who regard law as the product of history, and not purely as an abstracted instrument of justice, will be inclined to ask: what were the conditions prevailing in the 1990s in which the implied freedom first gained recognition? And do those conditions still exist?
Few decades have been as successful as the 1990s in the widespread adoption of liberal democratic values. The decade was marked out by the two 9/11s: the fall of the Berlin Wall on 9 November 1989, and the terrorist attacks of 11 September 2001. Between those historical landmarks was a period of remarkable confidence, and at times triumphalism, in the common acceptance of liberal democracy, epitomised by Francis Fukuyama’s well-meaning but deeply flawed best-seller The End of History and the Last Man (1992). The central theme of that book is that there exists a coherent and directional history of the world culminating in universal liberal democracy. Even the Israeli-Palestinian conflict came the closest it ever has to resolution with the Oslo Accords in 1993. The 9/11 terrorist attacks and their consequences brought home the naïve idealism and undue optimism of the period.
Set in that context, the implied freedom reflected what were then relatively uncontroversial and widely accepted values, in a benign period when our freedom was not in any substantial way being abused by people who used that freedom to express their fundamental hostility to liberal democracy. It was also a period in which verbal aggression, while not always civilised in nature, was clearly distinct from the outright barbarism of physical violence, whether actual or threatened. In other words, the implied freedom did not then have to prove itself to be an effective solution to a real crisis in Australian social and political life. It was a decade characterised by the success, rather than the decay, of liberal democratic values. One can well understand judges being influenced by, and wanting to share in, the spirit of those times. It is worth noting that before the 1990s, Justice Murphy was a lone voice among High Court judges in favouring an implied freedom of this kind. But with some historical distance from the 1990s, it should now be apparent that the desire for a particular outcome does not necessarily generate the power to produce it, although it does tend to generate the illusion that it has been produced.
The reality is that Australia now is a severely fractured and divided society. In particular, the virus of anti-Semitism is rife, and much of our social and political culture seems to have a suppressed immunity to its virulence. It would not have occurred to Australians in the 1990s that other Australians would abuse their freedom of political communication to publicly intimidate and vilify Jews. The idea that that might have taken place on the campus of the University of Sydney for weeks on end was simply unthinkable. Back then, we associated that behaviour with Nazi thugs in the Germany of the 1930s. Even more unthinkable is that the university’s officials turned a blind eye and a deaf ear to what was going on. There are many, probably the vast majority, who regard it as their democratic duty to stand against this hatred and wickedness, and, if they can, to stop it. To be fair to the High Court in the 1990s, the Justices could not be expected at that time to have contemplated the widespread evil of anti-Semitism in Australia, or for the propensity for political hostility to the policies of the state of Israel to degenerate into expressions of hatred for Jews in general. Unlike the 1990s, the barrier between verbal aggression and threats of physical violence often now seems to be as weak as the surface tension of water. The change in conditions should prompt reconsideration of the proper limits to our general freedom of political communication, and to think seriously about which is the appropriate branch of government to determine those limits. There is an enduring wisdom in the sceptical and empirical response of Edmund Burke to the liberty proclaimed by the French revolution: “we ought to see what it will please them to do, before we risk congratulations” (Reflections on the Revolution in France, 1790). In Edmund Burke’s case, the time lag was only about three years, but for us it has been three decades. The point still stands.
These problems demand much more than legislative responses, but legislation has an important role to play. The new battleground for the implied freedom concerns legislative attempts to restore and preserve social cohesion in the wake of the terrorist attack at Bondi Beach on 14 December 2025. Earlier this year, the New South Wales Court of Appeal was called upon to decide the federal constitutionality of state legislation authorising the Commissioner of Police to make a short-term “public assembly restriction declaration” in the aftermath of a terrorist act, upon the Commissioner being satisfied that holding public assemblies in the area would be likely to cause a reasonable person to fear harassment, intimidation or violence or fear for their safety, or be likely to cause a risk to community safety. The case is Jarrett v New South Wales [2026] NSWCA 62. The Court held that it is not a legitimate purpose to seek to preserve social cohesion by discouraging all forms of public assembly across the nominated geographical area of Sydney, irrespective of the purpose of the public assembly and the actual impact such an assembly may have on social cohesion. Even if that purpose were legitimate, the Court held that the means chosen by the legislature was a blunt tool that was not reasonably appropriate and adapted to achieving that purpose. The Court said that it was not enough that the legislature perceived the need for strong action to preserve the cohesion and safety of the community in the wake of an exceptionally traumatic event.
I will assume that the Court of Appeal’s reasons correctly apply the received wisdom by which they are bound as to the implied freedom. That assumption then enables us to assess whether it should be the judicial or the legislative branch of government which determines the scope of our freedom of political communication. The Jarrett case illustrates two important issues in that debate.
First, freedom of speech is not an absolute right. It is always qualified by other important goals of our legal system, such as honesty, truthfulness, carefulness and respect for the dignity of others as illustrated by the due protection of reputation. The question of striking a balance between those different goals in particular situations is a value-laden contest of moral and political ideas. Many people see that as a matter for democratic resolution by Parliament par excellence. By constitutionalising the issue, the scales tend to be tipped in favour of the implied freedom, because it is that goal which is singled out by the courts themselves as deserving of constitutional protection.
In Jarrett, the State of New South Wales put an argument that the purpose of preserving social cohesion is compatible with the system of representative and responsible government established by the Constitution because it is a precondition to the full participation in civic life by all the various communities that constitute the population for whom political communication should be equally secured. That is at the very least an available view, and it is sad to think that even some of our leading universities have abandoned that notion in the management of their own campuses. But the Court said that that involves a particular conception of civic life and social cohesion that is at odds with the system of representative and responsible government for which the Constitution provides (at [143]). The Court then explained that the Constitution does not protect people from political expression because it might be upsetting, inflammatory and divisive (at [143]), uncivil and objectionable (at [146]), insulting (at [147]–[149]), or offensive or seriously offensive (at [150]–[155]). Those adjectives were largely drawn from the High Court’s decisions in Coleman v Power (2004) 220 CLR 1 and Monis v R (2013) 249 CLR 92, but one is left to wonder (as Justice Heydon did in Coleman v Power at [330]–[333]) how the use of insulting language furthers the benefits which political debate brings, rather than creating obstacles to the exchange of useful communications by stimulating anger, embarrassment or fear. One may be forgiven for thinking that insults are typically intended to intimidate people and thereby exclude people from participating in debate. After all, one of the quickest ways to shut down any serious discussion of an important issue is to insult people who may hold a different point of view.
Some may admire the inflexibility and dogmatism of the High Court’s position. Others, more sceptical about the existence of a single definitive solution to any complex problem, formulated in a very different era, may think that the traumatic consequences of a fatal terrorist attack on innocent civilians who were peacefully and joyfully celebrating a religious festival call for some modification in the particular circumstances. Our elected representatives perceived that a reasonable approach would be a temporary ban on public assemblies in the Sydney region, given recent experience of the conduct of such public assemblies. They did so within 10 days of the terrorist attack. A debate and decision by Parliament offers the traditional democratic means of resolving the issue. But the Court of Appeal candidly stated in Jarrett that “quelling all public assemblies in a particular area in the name of preserving social cohesion” in the aftermath of a terrorist act is “a constitutionally illegitimate purpose even if there may be a perceived need for special measures” (at [157], emphasis added).
The second issue as to whether resolution by Parliament should be preferred concerns the extent to which Parliament may be seen as having the benefit of wider and deeper sources of information than the judiciary. Parliamentarians are deeply immersed in the community. They are in regular contact with their constituents, whether they would choose their company or not. They have the benefit of frank and fearless advice from the executive branch of government. That includes members of the police force with actual knowledge of what is said and done at public demonstrations, and how rapidly verbal aggression can lead to physical aggression, whether actual or threatened. Further, Parliamentarians are not constrained by the laws of evidence. Nor are they confined by statements of agreed facts negotiated by the parties, which may or may not be supplemented by lay or expert evidence at the parties’ choice. When the subject matter concerns speculation as to risks which may or may not arise in the future, Parliamentarians can make their own inquiries and gauge for themselves the extent and nature of those risks, and the public’s appetite for guarding against them. And like the aggregation which occurs in a well-functioning market, Parliament offers a forum for the contest and combination of all those sources and viewpoints. It enables multi-faceted social problems to be addressed in their full complexity, rather than being constrained by the parameters of a dispute between two particular parties. All those elements stand in contrast to the relatively isolated world which judges inhabit, and the procedural constraints imposed on them. I have a deep admiration for our system of legal adjudication, but it is important to acknowledge its inherent limitations.
To illustrate the point by reference to the Jarrett case, the Court of Appeal recognised the significance of the psychological welfare and safety of members of the community as an element of the cohesion of the community more broadly. That was referred to in the Minister’s second reading speech (at [128]), both parties embraced its relevance (at [131]), and the Court said that it was open to the Commissioner to consider that risk (at [132]). But there is a serious issue as to whether judges are equipped professionally to determine whether a law is appropriately framed to protect people’s psychological well-being, or whether in particularly traumatic circumstances that psychological well-being requires some modification to the ordinary freedoms which others enjoy to express their political views.
Where should we go from here? The question leads me to a further issue arising out of these cases. Justice Steward concluded in Ravbar v Commonwealth at [294]–[296] that, although he was strongly convinced that the implied freedom is fundamentally wrong, in the absence of any argument disputing the existence of the implied freedom he was bound to apply it. In doing so, Justice Steward expressly followed the example set by Sir Harry Gibbs in the Second Territories Representation Case (Queensland v Commonwealth (1977) 139 CLR 585 at 599–600). Further support for that approach may be found in the reasons of Justice Callinan in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [337]–[348] and Coleman v Power at [289] and [301], and in the reasons of Justice Heydon in Monis v R at [243]–[251]. Chief Justice Gageler took particular exception to Justice Steward’s approach and seemed to demand unquestioning submission to precedent unless and until a party successfully applies to reopen Lange’s Case or its progeny (at [25]–[26]). Given that the subject matter concerns freedom of speech, there are those who have been led to think (rightly or wrongly) that irony never takes a day off.
Let me conclude by adding to this controversy the perspective of someone lower down the judicial hierarchy. We expect High Court judges to be leaders in their field and to show leadership in discharging their duties. One of the essential attributes of leadership, which is reflected in the Chief Justice’s riposte in Ravbar, is that a leader must be faithful to his or her institution, and to its purposes. But there is no reason to think that a person who seeks to improve the work of that institution is any less faithful to its purposes than a person who seeks to maintain the status quo. More importantly, institutional fidelity is not the only essential attribute of leadership. At least equally indispensable is the requirement that a leader must have that quality of integrity usually described as being true to oneself. Maintaining one’s integrity should not be affected by whether one is in a minority. Sir Robert Menzies, hardly an anti-establishment figure, said at the conclusion of one of his “Forgotten People” broadcasts in 1942 (“Compulsory Unionism” in The Forgotten People, Angus & Robertson, Sydney, 1943, p 130):
It is perhaps not untrue to say that if, in the history of the last hundred years, everybody had been compelled to subscribe to what the majority thought, there would have been no progress in the world and we should have become merely a community of dumb and driven cattle.
With great respect to Chief Justice Gageler, for whom I have a very high regard, the course which Sir Harry Gibbs took to resolving the conundrum of being bound by authority that one is convinced is wrong (and which Justice Steward followed) is one of the many reasons why Sir Harry Gibbs is remembered as a judicial leader of unquestioned, and indeed adamantine, integrity. We will not resolve the present crisis in social cohesion without leaders in all branches of government and in the broader community demonstrating integrity and moral courage. For the High Court, the question must be confronted as to the proper ambit of its constitutional role, so as to ensure that the legislative and executive branches of government are able to discharge fully their constitutional responsibilities of deciding what is best and acting on those decisions. That is fundamentally why the present crisis demands some serious intellectual stocktaking of the implied freedom.
