In the freedom of political communication cases, McDonald sees the emergence of a new paradigm to displace some of the influence of the Engineers' Case. These cases are seen to emphasise notions of "popular sovereignty" and "representative democracy" rather than "parliamentary sovereignty" and "responsible government", and in so doing, the Australian Constitution is brought a little closer to the American, and use of American case law is promoted instead of inhibited. This "convergence of constitutions" has also been noted by William Rich.

The First Amendment to the United States Constitution provides that Congress cannot make a law "abridging the freedom of speech or of the press". In the ACTV Case (and subsequent cases) the High Court did not purport to hold that such a "right" was to be implied into the Australian Constitution, but it did consider American first amendment cases in discussing the freedom of political communication that it implied into the Constitution.

The reliance on, and discussion of, those cases by certain judges of the High Court has been the subject of some academic criticism. Rosenberg and Williams have said:

They concluded that:

They argue that the High Court was too willing to accept US authorities without fully appreciating the political practice to which the constitutional principles set out in those cases is applied. They also say that, in their view, the First Amendment and current US case law would not prevent Congress from enacting laws similar to those ruled unconstitutional by the High Court. Additionally, they suggest that, instead of enhancing the democratic process (the fundamental basis for the implication of freedom of political communication), the High Court's adoption of the "free market of ideas" approach to free speech has limited it.

Barendt also indicates that the basis of the American notion of free speech is very different from the implied value found by the High Court in the Australian Constitution, notwithstanding that the Court relied heavily on American cases and the American notion of "free market of ideas" to support its decision.

While this criticism suggests that the High Court should perhaps be more careful to gain a fuller understanding of the context of American cases and their practical application before adopting the theories said to lie behind them as the basis for Australian Constitutional principles, it might also indicate that the High Court is prepared to adapt American legal principles to an Australian context even if they are not directly applicable, and are not applied in quite the same way. However, once applied, the Court is likely to adjust the application of these new principles on a case by case basis to create a more peculiarly Australian doctrine and continue to consider and contrast American cases to assist it in that endeavour. This appears to have been the effect of later High Court cases in this area.

Attorney-General (Cth); ex rel McKinlay v. The Commonwealth (McKinlay's Case) concerned, among other matters, the question whether the Constitutional requirement that members of the House of Representatives be "directly chosen by the people of the Commonwealth" meant that equal numbers of electors were required within electoral divisions. All the judges except Murphy J held that the Constitution did not require equal numbers of electors in electoral divisions. However, McTiernan and Jacobs J held that inequality of numbers is a factor that might prevent a choice being "by the people", and that it was a question of degree. In the situation before the Court, they were satisfied that the inequality was not such as to infringe section 24 of the Constitution.

The Supreme Court of the United States, in considering the analogous provision in the American Constitution (Article I, section 2), had held that "as nearly as practicable one man's (sic) vote in a congressional election is to be worth as much as another's" and the Constitution "permits only limited population variances which are unavoidable despite a good faith effort to achieve absolute equality, or for which justification is shown."

Barwick CJ rejected the use of American cases to assist in deciding this matter. He repeated the Dixonian approach to interpretation, saying:

He then discussed the different histories of pre-federation Australia and America, making a key distinction that, "unlike the case in the American Constitution, the Australian Constitution is built upon confidence in a system of parliamentary government with ministerial responsibility". However, William Rich has pointed out that this very distinction would constitute a reason for increased insistence upon electoral equality. He argues that, if confidence is to be the measuring stick, the prime judicial role should be one of policing the democratic process to ensure that an unrepresentative group will not attain and then preserve its anti-majoritarian place in Parliament. He notes that elemental confidence in majority rule was the basis for the US precedent which Barwick CJ chose to reject.

Rich suggested that "an opposite resolution to the McKinlay case could now follow in an incremental fashion from the principles and values which underlie the Constitution as identified in the Political Speech cases." He noted that, "the Australian Constitution, like its US counterpart, is built upon democratic principles; [and] that the High Court's task is therefore one of 'representational reinforcement'."

The High Court did consider the question again, but in the context of State electoral laws, and the Western Australian State Constitution. In McGinty, there were signs that incremental change was occurring based on the notions of popular sovereignty identified in the ACTV Case. While the Court, by majority (Toohey and Gaudron JJ dissenting), held that equality of voting power did not apply to Western Australian State elections, there were some signs that this was not a lost cause as far as the Commonwealth was concerned.

Brennan CJ chose not to decide the issue, but recognised that an argument to overturn McKinlay's Case as it applied to Commonwealth elections could be based on the notion of "representative democracy" in the Commonwealth Constitution.

Dawson J, in affirming the continued applicability of McKinlay's Case, cited American cases, but with a view to distinguishing the "historical context".

Toohey J said that recognition that representative democracy underlies the Constitution implies more than freedom of political communication, and held that "a general principle of equal electorates is 'a minimal requirement for a representative democracy'." However, he declined to rely upon American cases for guidance on this matter, instead, relying upon Canadian cases for that purpose because Canada "adopted and built on the English tradition".

Gaudron J was more inclined to refer to American cases for guidance. She noted the parallels between the American and Australian Constitutions, and said that, like Art. I, s. 2, of the American Constitution, the phrase "chosen by the people" in the Australian Constitution guaranteed democracy. Gaudron J saw the recent American cases offering a solution to the problem of an undemocratic electoral system, notwithstanding the original intention position asserted by Dawson J and the historical inequality of electorates in Australia (and in America before Wesberry v. Sanders in 1964).

McHugh J considered the American cases in some detail, but concluded that because the equal protection clause has no counterpart in the Australian Constitution, the American cases were of limited benefit. While McHugh J saw merit in the representative democracy argument, he considered that "the Australian people do not regard one vote one value as an essential requirement of representative democracy." McHugh J (and some of the other judges) appeared to have been concerned by the technical way in which the United States Supreme Court had applied the American equal protection clause, and may have been worried that if the same values were to be implied into the Australian Constitution, similar problems would arise. Thus the results of these American cases were used to test the proposed solution and were found, at least in McHugh J's view, to produce an inappropriate result that should not be imported to Australian Constitutional law.

Gummow J also considered the American cases in some detail, but like Toohey J, held that the Canadian experience was more applicable. However, he was content to draw rhetorical support for a significant aspect of his argument (that the nature of representative democracy was a political rather than legal question) from dissenting opinions in the US Supreme Court by Frankfurter J and Harlan J.

While American cases were extensively cited and analysed, the American interpretation was largely rejected. Nevertheless, as indicated above, the High Court's use of those cases involved, in varying degrees and by different judges, the four identified uses of comparative law, even where they expressly rejected the applicability of those cases.