capable of extending to freedom from restraints imposed by law. … The beliefs of the founders at the end of the last century as to the sufficiency of protections conferred by statute and common law cannot limit the content of an implication to be drawn from the Constitution. o Implications can be drawn from the text and structure of the Constitution itself. o Relevance of framers intentions limited, at least when concerned with the ‘efficacious’ working of the institutions est by the Constitution. S Donaghue, The Clamour of Silent Constitutional Principles (1996) 24 Federal Law Review 133 o “[W]here the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of the structure” ACTV (1992) 177 CLR 106 at 135, Mason CJ) o Goldsworthy: ‘it is difficult to justify respecting the founders' intention to pursue some general purpose, such as the establishment of a representative democracy, but not their intimately linked intention to do so only by particular means and to a limited extent.’ o See also Dawson J in ACTV at 181 emphasising the Constitution was passed as the instrument of the Imperial Parliament o Raises questions: o J Goldsworthy, Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue (1997) 23 Monash University Law Review 362, 371 o He continues: ‘The available evidence strongly suggests that their intention was to continue to rely on the traditional methods of protecting freedoms with which they were familiar, that is, the common law, constitutional conventions, parliaments, and the electoral process, rather than judicial review.’ o So, he argues, finding the implication entails determining o The founders intended a system of representative government o They determined this required those parts set out in the text, not including the implied freedom o They were wrong, and it does require the implied freedom o The implied freedom exists Jeremy Kirk’s list of factors: o The strength of the positive imperatives supporting the implication (framers’ intentions; what it is reasonable to see as communicated, even if not considered; institutional efficacy)
o Textual manifestation and guidance. o Whether the implication “can be precisely defined”. o Consequences. o Judicial administrability. o Political centrality of the issues. o When identifying an implied freedom, look to factors. o Institutional efficacy – support constitutional text and structure. o Goldsworthy 372: o ‘The “lion in the path” of any argument that judicial enforcement of freedom of political speech is practically necessary for the effective operation of our representative democracy is that while extensive free speech is necessary, a judicially enforceable freedom is obviously not. My provocative use of the word “obviously” is deliberate. It is obviously not necessary, because Australia had an effective representative democracy for nearly a century, as did Canada until 1982, and many other western nations still have such democracies, in the absence of a judicially enforceable freedom.’
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