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Abstract

Because the Commonwealth has never fulfilled its promise to domesticate the International Covenant on Civil and Political Rights 1966 (ICCPR), human rights in Australia remain an uncertain blend of federal and state anti-discrimination statutes, common law rights and constitutional implications. The litigation surrounding Tess Corbett’s media interview in Hamilton, Victoria when she was campaigning as a candidate in the 2013 federal election, highlights that uncertainty. Should her statements have been protected because the voters in Wannon, Victoria needed to know her views so as to vote in an informed way, or did New South Wales’ interest in stamping out the vilification of gay people justify a law in that state that burdened Ms Corbett’s expression? While the New South Wales Court of Appeal and the High Court eventually agreed that the New South Wales’ tribunals involved had no jurisdiction to hear the case in the first place, the underlying anti-discrimination v freedom of political communication issue was not resolved despite many hearings. This article considers how that question might have been resolved since the New South Wales Court of Appeal in the Sunol case in 2012 seem to have preferred the views of the minority in the High Court in Coleman v Powerin 2004.

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