Unelected judges have overridden the elected government in NSW, finding that a bipartisan decision to stop the “weekly occupation of Sydney streets by the hard-left” , is unconstitutional.

These judges have once again “found” a freedom of political communication that does not appear in the Constitution. Made it up, in other words.

Unlike in the US, which has clear and enforceable rights of political communication, the “freedoms” in Australia don't protect us, but are a “license for judicial bias” with serious discretion afforded to activist judges.

In that regard, the example is given of coming down on someone praying outside an abortion clinic, compared with backing the “right” of aggressive minorities to block roads and bridges, and spout antisemitic hatred while waving flags and symbols that have been declared illegal.

The “creation” of this sort of freedom for a lunatic minority is a serious mistake for judges playing politics instead of doing their real jobs. And, if any changes to our Constitution are really needed or wanted by a majority of Australians, they should be decided by referendum and public consultation as happened when it was first written “with an elected convention followed by a serious, considered debate and a series of referendums”.

It is believed by Professor David Flint, who has had extensive experience with Constitutional law, that our Constitution was seriously damaged when activist judges “went into league with a political class”; the very people who appoint judges.

To replace the “value judgements” of the High Court we need a referendum to incorporate citizen-initiated referenda in the Constitution.

(Source: David Flint, ‘ The judicial invention of freedom: A bridge too far?’, Spectator 18/4/26)

It sounds a bit crazy ttbn. It looks like something that needs to be resolved at a level deeper than the problem itself. I have to admit I'm at a bit of a loss at what to do here. I suppose all social systems have contradictions. But I have faith that problems have solutions. Thanks for raising this interesting problem.

I don't think the judges would have the same patience with Traditionalist's.

I think this is the episode of Yes, Minister where Hacker threatens to deny a knighthood to influence a decision of a university bureaucrat (rather than a judicial bureaucrat). Don't the politicians appoint the senior judges. And how does the 'Overton Window' apply here?

I got this from AI- (it sounds like the legislature should be able to get the laws past the judiciary under the auspices of 'justified impairment'). I suspect that sometimes a government might want to look like they are doing something without doing anything, so they could draft a law they know won't get past the umpire.

"
The implied freedom of political communication (IPC) is recognised by the High Court of Australia.
It is implied from the Constitution’s system of representative and responsible government.
IPC protects communication about government, public affairs, politics and voting.
It is not an individual personal right but a constitutional limitation on legislative power.
Key authority: Lange v Australian Broadcasting Corporation (1997).
The Lange test has two steps: does the law burden political communication; if so, is it proportionate to a legitimate purpose?
Proportionality involves suitability, necessity (least restrictive means), and adequate balance.
Legitimate purposes include protecting reputation, privacy, public order, electoral integrity and national security.
Laws that do not burden political communication fall outside IPC scrutiny.
Defamation laws can be valid but must be applied compatibly with IPC (e.g., qualified privilege).
Electoral advertising and disclosure rules are permissible if proportionate.
Strict prior restraints on political speech are likely to be invalid.
Courts assess whether a law’s burden is justified in the context of representative government.
Remedies for invalid laws include declarations of invalidity and injunctions.
IPC does not protect all political speech absolutely; burdens can be justified.
Recent High Court decisions refine proportionality analysis rather than discard Lange.
Successful challenges require showing substantial, unjustified impairment of political communication.
IPC analysis is highly fact- and context-sensitive.
Practical use: test laws that restrict political debate for burden and proportionality.
For case summaries or a checklist applying the test, provide the statute or scenario.
"