19 February 2025
Why Australia’s Campaign Finance Reform is Likely to Face Constitutional Challenge
After decades of gridlock on campaign finance reform at the federal level in Australia, the major parties reached a deal to pass the Electoral Legislation Amendment (Electoral Reform) Act 2025 (Cth) on almost the last parliamentary sitting day before a forthcoming election. The new law will not take effect until after the election. It will lower the threshold for the disclosure of donations and ensure disclosures are published more quickly. It will also impose a cap on political donations and a cap on electoral expenditure. This all sounds like a great improvement for transparency and fairness in election campaigning. In theory, it is. So why and how could it be the subject of a successful constitutional challenge? Continue reading >>
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05 December 2024
Why Australia’s Social Media Ban for Kids May Breach Its Constitution
On 29 November 2024, the Australian federal Parliament enacted a world-first law, which imposed a minimum age for access to most social media sites in the country. The law will not come into full force for at least twelve months, to give time to social media platforms to devise appropriate methods for verifying the ages of users. The law might be a rare example that fails the proportionality test. Social media companies have the means and incentive to mount a constitutional challenge to find out; surely they are going to do so. Continue reading >>
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01 February 2024
Civil Disobedience and Judicial Theories of Political Change
This post considers the latest episode of Australia’s engagement with civil disobedience under its constitutionally ‘implied freedom of political communication’ — Kvelde v New South Wales (‘Kvelde’). In Kvelde a judge of the New South Wales Supreme Court followed the tendency of some High Court judges of reducing the democratic value of civil disobedience to binary terms: if a form of political speech is already illegal, the Court will not engage with further legislative acts seeking to increase penalties for it. I describe this as the ‘binary approach.’ I argue that the binary approach reflects a particular judicial theory of political change not necessarily prescribed by the freedom, that is also out of step with historical Australian political practices. Continue reading >>
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