A comment on how the implied freedom of political communication restricts non-statutory executive power

Abstract

This comment argues that the decisions of the Executive at all levels of Australian government need to be consistent with the implied freedom of political communication. Hence the test so far propounded for an infringement of the implied freedom needs to be adjusted to refer not just to a ‘law’ but also to any exercise of non-statutory executive power whether an exercise of royal prerogative power or other non-statutory capacity of the executive. Although there are limited circumstances when such an exercise of executive power affects the legal rights and duties of citizens, when this occurs, the implied freedom offers protection.