A seductive plausibility: freedom of speech in the constitution

Aroney, Nicholas (1995) A seductive plausibility: freedom of speech in the constitution. University of Queensland Law Journal, 18 2: 249-274.


Author Aroney, Nicholas
Title A seductive plausibility: freedom of speech in the constitution
Journal name University of Queensland Law Journal   Check publisher's open access policy
ISSN 0083-4041
1839-289X
Publication date 1995-11-18
Year available 1995
Sub-type Article (original research)
Open Access Status Not Open Access
Volume 18
Issue 2
Start page 249
End page 274
Total pages 26
Place of publication St Lucia, QLD, Australia
Publisher University of Queensland Press
Language eng
Abstract The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth or fifth logical extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the 'line drawing' familiar in the judicial, as in the legislative process - 'thus far but not beyond'. This article closely scrutinises the reasoning adopted by the High Court of Australia in several cases in which it has held that the Australian Constitution contains within it an implied freedom of political communication inferred, supposedly, from the Constitution's provision for a system of representative democracy. To this end, the article offers a limiting theory about the use of implications and inferences in constitutional interpretation, based on several values generally associated with constitutionalism and the rule of law. In so doing, the article also discusses the way in which the jurisprudence of other countries, in particular Canada and the United States, influenced the reasoning of the High Court in these cases.
Keyword Constitutional law
Freedom of speech
Democracy
Political communication
Australian constitution
Constitutional implications
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collection: TC Beirne School of Law Publications
 
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Created: Wed, 20 Jul 2016, 15:24:32 EST by Carmen Buttery on behalf of T.C. Beirne School of Law