The High Court has recognised an implied freedom of political communication. The same constitutional principles could support a broader guarantee that Australian elections themselves must be free and fair.

Past and present High Court challenges to Victorian and Commonwealth electoral laws about political donations and election campaign spending focus on whether they wrongly impact on freedom of communication. They should be able to question directly whether the laws threaten free and fair elections.

More than 30 years ago, the High Court unveiled an implied constitutional freedom of political communication. It was controversial at the time for the court, in effect, to create a new right to political free speech. But it is now well and truly part of Australia’s political and legal system.

In my view that new ‘right’ or ‘freedom’ needs to be expanded. The same sections of the Constitution on which the High Court relied to recognise free political communication could be (and should be) the basis of an implied right to – that is, a guarantee of – free and fair elections.

The Constitution contains many sections that mention elections. But none of them specifically require that elections must be fair and free. Perhaps that should be implied in any event. But the High Court has been unwilling to take that step.

The majority of judges in the free speech cases in 1992 based the recognition (or, as some critics maintain, creation) of the freedom of political communication on........

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