The Constitutional Problem with Banning Political Phrases, By Ian Wilson LL. B
In Queensland the state government has passed legislation criminalising the public use of two particular political slogans: "from the river to the sea" and "globalise the intifada." Supporters of the law argue that these phrases have become associated with hostility toward Jewish people and with extremist political movements, and therefore banning them is a legitimate response to rising tensions surrounding the Israel–Palestine conflict. Yet from a constitutional perspective the move is extraordinary. Liberal democracies rarely criminalise specific phrases as such, and in Australia the legislation immediately raises a serious constitutional question: can a parliament outlaw particular political expressions without violating the constitutional system of representative government?
Australia's constitutional framework makes this issue especially interesting because, unlike the United States, the Constitution contains no explicit bill of rights guaranteeing freedom of speech. Instead, the High Court has recognised what is known as the implied freedom of political communication. This doctrine arises from the structure of the Constitution itself, which establishes a system of representative democracy. Because citizens must be able to discuss political matters in order to vote meaningfully and hold governments accountable, the Court has held that the Constitution necessarily implies a freedom to communicate about political and governmental issues. The freedom is not a personal right in the American sense but rather a restriction on legislative power. Governments may regulate speech, but they cannot do so in a way that unjustifiably burdens political communication.
When a law is challenged on this ground, the High Court applies a two-stage analysis developed through cases such as Lange v ABC and refined in later decisions. The first question is whether the law effectively burdens political communication. If it does not, the law stands. If it does, the Court then asks whether the restriction is reasonably appropriate and adapted to serve a legitimate purpose consistent with the system of representative government. In other words, the law must pursue a legitimate objective and must not go further than reasonably necessary to achieve that objective.
The Queensland phrase-banning law appears vulnerable at the very first step of this test. The slogans in question are used in political protest relating to one of the most controversial geopolitical issues of our time. Whatever one thinks of their meaning, they are plainly part of contemporary political discourse. By criminalising their use in public, the legislation directly burdens political communication. Indeed, the law does something that courts traditionally regard with suspicion: it targets the content of speech itself rather than regulating harmful conduct in a more general way. Instead of prohibiting intimidation, threats, or incitement to violence, the statute singles out two particular expressions and declares them unlawful.
The second stage of the constitutional test raises even more difficulties. Governments certainly have a legitimate interest in preventing harassment, intimidation, and violence. However, the means chosen to achieve that goal must be proportionate. The Queensland law criminalises speech if it could cause a person to feel "menaced, harassed or offended." That is a remarkably low threshold in the context of political debate. Political speech routinely offends someone, and the High Court has previously emphasised that robust, even abrasive, communication is an inevitable feature of democratic life. In the case of Coleman v Power, for example, the Court overturned a conviction for insulting police during a political protest, recognising that the constitutional system protects speech that is provocative or upsetting.
Another difficulty is that the meaning of the banned slogans is contested. To some people they express hostility toward Israel or even support for violence, while to others they represent a call for Palestinian self-determination or solidarity with a political cause. Because the legislation criminalises the phrase itself rather than focusing on the speaker's intent, it potentially captures a wide range of situations, including political debate, historical discussion, academic analysis, or even criticism of the slogans themselves. Although the statute contains exemptions for artistic or educational contexts, these exceptions may not be enough to save a law that directly suppresses political expression.
From a constitutional perspective, the problem is not simply the phrases in question but the precedent that such legislation establishes. If a government can outlaw two controversial political slogans today, the principle could easily expand tomorrow to other forms of political speech that governments find offensive or destabilising. Democratic systems normally avoid this danger by focusing on conduct — threats, harassment, incitement to violence — rather than prohibiting specific political messages.
Some observers have suggested that the law may also serve a political purpose. By introducing a high-profile ban on controversial slogans, a government can demonstrate a strong stance against antisemitism and extremism. If the legislation is later struck down by the High Court as unconstitutional, the responsibility for nullifying the ban shifts to the judiciary. In that sense the law can function as a symbolic political gesture even if its long-term constitutional survival is doubtful.
Whatever the political calculations, the deeper issue concerns the nature of democratic debate. Political discourse in a free society is rarely comfortable. It is often heated, offensive, and deeply divisive. The implied freedom of political communication exists precisely because the Constitution assumes that citizens must be free to express competing views about public affairs without fear that the government will decide which slogans may or may not be spoken in public. If the Queensland legislation ultimately reaches the High Court, the judges will not be deciding the merits of the slogans themselves. They will be deciding something far more fundamental: whether in Australia the state has the power to criminalise particular political words.
If the Court concludes that such power exists, the implications for political speech could be profound. If, on the other hand, the law is struck down, it will reaffirm a central principle of the constitutional system — that political communication, even when offensive or disturbing, must remain largely free if representative democracy is to function at all.
https://www.theguardian.com/commentisfree/2026/mar/08/the-lnps-phrase-banning-law-is-wide-open-to-constitutional-attack-is-it-a-victory-for-the-people-or-a-smart-political-play