323 Justice Hely in Jones v Scully held, in a single sentence, that Pt IIA effectively burdens the implied freedom (at [239]):
Although the RDA does not contain any rule that prohibits an elector from communicating with other electors concerning government or political matters relating to the Commonwealth, it nevertheless could effectively burden the freedom of communication about those matters insofar as it requires electors to submit to penalties for the publication of communications or leads to the grant of injunctions against such publications (cf Lange at 568).
324 Senator Faruqi accepts that for me to depart from that conclusion, I must be satisfied that it is plainly wrong. An argument is mounted on her behalf that rather than burden the implied freedom, Pt IIA is supportive of and enhances the freedom of political communication. The argument is that the relevant question is not whether Pt IIA restricts political communication per se, but whether it impedes the "freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors": Lange at 560; the implied freedom "extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution": Banerji at [20]. It is said that Pt IIA does not do that because racially offensive public acts, committed unreasonably or in bad faith, do not facilitate the making of an informed electoral choice.
325 As argued by Patrick Keane in "Sticks and stones may break my bones, but names will never hurt me" (2011) 2(2) Northern Territory Law Journal 77 at 86, a "focus upon the public interest in the free interplay of ideas needs to ensure that the public forum and airways are equally available to all." He says that conduct that is apt to intimidate serves to exclude people from public debate. "So conceived, the constitutional protection of free speech is not so much a matter of holding the ring between competing views, as a means of facilitating equal participation in the democracy."
326 A similar view was expressed by Kirby J in Coleman v Power [2004] HCA 39; 220 CLR 1 at [256] as part of the majority in holding that a provision prohibiting the use of any threatening, abusive or insulting words to any person in or near a public place was not invalid as being in conflict with the implied freedom. His Honour explained that such a prohibition of extreme conduct, or "fighting words", "protects the social environment in which debate and civil discourse, however vigorous, emotional and insulting, can take place." However, that part of his Honour's reasoning – as with that of McHugh J at [97] where a similar point was made –
