SECTION 18C AND THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

This article examines whether Racial Discrimination Act 1975 (Cth) s18C is constitutionally invalid, wholly or in part, by virtue of the implied freedom of political communication. It analyses s18C's constitutional validity at the burden, compatibility and balancing stages of the recently affirmed McCloy test. In doing so, it aims to highlight aspects of these stages which are uncertain of application, or the subject of divergent High Court authority, and where possible offer acceptable resolutions. Ultimately, this paper concludes that s18C is capable of withstanding a High Court constitutional challenge, meanwhile acknowledging that such a finding may be premised on departure from prevailing Federal Court authority on certain aspects of s18C's operation.