Lost in Translation: from Political Communication to Legal Communication?

APLA Limited v Legal Services Commissioner (NSW)2 (‘APLA’), decided in September this year, had the potential to be a landmark decision in the field of implied constitutional freedoms comparable to Australian Capital Television Pty Ltd v Commonwealth3 (‘ACTV’) and Nationwide News Pty Ltd v Wills4 (‘Nationwide News’). In the two latter cases the High Court concluded that the provision for a system of representative and responsible government in the Australian Constitution necessarily implied a constitutional right to freedom of communication in respect of government and political matters. In APLA it was argued that the Constitution’s provision for a system of federal courts exercising the judicial power of the Commonwealth necessarily implied a freedom of communication in respect of legal rights arising under federal law and rights to representation before courts exercising federal jurisdiction. However, by a majority of five to two, the High Court in APLA rejected the notion that Chapter III of the Constitution could somehow provide the foundation for an implied freedom analogous to the freedom derived from Chapters I and II.5 The result in APLA thus raises a rather obvious question: why Chapters I and II and not Chapter III?6 It is important to appreciate that while the outcomes in ACTV and Nationwide News certainly stand, the reasoning used to support the implied freedom in those