- (5) the communication must not have been made reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest;
- (6) the communication must not have been made reasonably and in good faith in making or publishing a fair and accurate report of any event or matter of public interest;
- (7) the communication must not have been made reasonably and in good faith in making or publishing a fair comment on any event or matter of public interest where the comment is an expression of a genuine belief held by the respondent.
330 It is hard to conceive of examples of communication that would be unlawful under those provisions that would concern political or government matters and be capable of bearing on the making of an informed electoral choice by Australian voters. However, the present case is one. A Senator replied to another Senator on a public platform about matters of contemporary government. The reply was in attacking terms and said nothing about the political points to which it was a reply, but it was a political communication nonetheless in its denigration of a political opponent.
331 As submitted on behalf of Senator Hanson, political discourse and debate in Australia can be particularly robust; it can cause offense, even deliberately so; it can be passionate, exaggerated and angry; it can mix fact and comment and commonly appeals to fear and prejudice – and restrictions on those forms of political communication effectively burden the implied freedom. See Levy v Victoria at 623; Roberts v Bass [2002] HCA 57; 212 CLR 1 at [171]; Coleman v Power at [81], [105], [197] and [239]; Monis at [85] and [220].
332 I am therefore not satisfied that Hely J was plainly wrong in concluding that Pt IIA effectively burdens the implied freedom. To the contrary, I am satisfied that it does. However, the burden is slight. That is because there is so little political communication that is ultimately proscribed by Pt IIA; in making certain conduct unlawful, Pt IIA imposes a burden at the outer edges of political communication; not at the content of ideas but in the way in which they might be expressed.
333 Senator Hanson seeks to counter that by submitting that the burden is substantial because of the range of matters potentially impacted that may be the subject of discussion, debate and contest "relevant to the development of public opinion [and] which an intelligent citizen should think about": Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104 at 124
