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Implied freedom of Political Communication – development of the test and tools

Chris Bleby

1. The implied freedom of political communication was first announced in Nationwide News v Wills1 and Australian Capital Television Pty Ltd v The Commonwealth.2 As Brennan J described the freedom at this nascent stage:3

“the legislative powers of the Parliament are so limited by implication as to preclude the making of a law trenching upon that freedom of discussion of political and economic matters which is essential to sustain the system of representative government prescribed by the Constitution.”

2. ACTV concerned Part IIID of the Broadcasting Act 1942 (Cth), which was introduced by the Political Broadcasts and Political Disclosures Act 1991 (Cth). It contained various prohibitions, with exemptions, on broadcasting on behalf of the Commonwealth government in an election period, and prohibited a broadcaster from broadcasting a “political advertisement” on behalf of a person other than a government or government authority or on their own behalf.

3. Chief Justice Mason’s judgment remains the starting point of the implied freedom for its analysis based in ss 7 and 24 of the Constitution. His Honour also ventured a test to be applied for when the implied freedom could be said to be infringed. This was a lengthy, descriptive test. Critically, he observed that the freedom was only one element of a society controlled by law:4

Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public. Thus, to take an example, Parliament may regulate the conduct of persons with regard to elections so as to prevent intimidation and undue influence, even though that regulation may fetter what otherwise would be free communication ((94) Smith v. Oldham [1912] HCA 61; (1912) 15 CLR 355, per Griffith C.J. at pp 358-359).

4. His Honour then drew a distinction between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. As to the former:5

“only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which

1 (1992) 177 CLR 1. 2 (1992) 177 CLR 106. 3 ACTV v Cth (1992) 177 CLR 106 at 149 (Brennan J). 4 ACTV v Cth (1992) 177 CLR 106 at 142-143 (Mason CJ). 5 ACTV v Cth (1992) 177 CLR 106 at 143 (Mason CJ). 2

operate by reference to the character of the ideas or information. But, even in these cases, it will be necessary to weigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom of communication”.

5. As to the latter:6

“restrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible of justification. The regulation of radio and television broadcasting in the public interest generally involves some restrictions on the flow and dissemination of ideas and information. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary to achieve the competing public interest”.

6. This early call for balancing was echoed by Brennan J by express reference to the concept of proportionality:

“To determine the validity of a law which purports to limit political advertising, it is necessary to consider the proportionality between the restriction which a law imposes on the freedom of communication and the legitimate interest which the law is intended to serve. If the prohibition on political advertising by means of the electronic media during election periods imposed by s.95B is not disproportionate to the objects of minimizing the risk of political corruption and reducing the untoward advantage of wealth in the formation of political opinion, s.95B is a valid law even though it restricts to some extent the freedom of political discussion (See Castlemaine Tooheys Ltd. v. South [1990] HCA 1; (1990) 169 CLR 436, at p 473.). Proportionality is, of course, a matter of degree. When the boundary of permissible restriction on freedom of speech is passed, the law imposing the restriction loses the constitutional support of the power which would otherwise be available to support it (The Commonwealth v. Tasmania. The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1, at p 278; South Australia v. Tanner [1989] HCA 3; (1989) 166 CLR 161, at p 178.).”

7. Statements to similar effect as to the requirement of balance were made by Deane and Toohey JJ.7 Justice Gaudron wrote in more absolute terms, but in doing so deployed the words, “reasonably appropriate and adapted”:

“The Commonwealth has power to regulate political discourse only in accordance with and by reference to the specific powers which the Constitution entrusts to it. Given that the powers conferred by s.51 are conferred "subject to the Constitution" and, hence, subject to the implied freedom of political discourse, that means that a power so conferred may only be used to regulate political discourse to the extent that that regulation is, in terms used in Davis v. The Commonwealth ((305) (1988) 166 CLR 79, per Mason C.J., Deane and Gaudron JJ. at p 100), "reasonably and appropriately adapted" to achieve some end within the limits of that power. And, of course, what is reasonable and appropriate will, to a large extent, depend on whether the regulation is of a kind that has traditionally been permitted by the general law.”

6 ACTV v Cth (1992) 177 CLR 106 at 143 (Mason CJ) (emphasis added). 7 ACTV v Cth (1992) 177 CLR 106 at 169 (Deane and Toohey JJ). 3

8. So from the outset, it was explained that the implied freedom required a balancing exercise between the public interest in the end to be served by the law and the public interest in the freedom of political communication.

9. Ultimately, these early efforts are best characterised as having been descriptive of the exercise, rather than iterative of a test. Without going into the full history,8 in Lange v Australian Broadcasting Corporation,9 the High Court in a unanimous judgment articulated a test for determining whether a law infringes the implied freedom:10

“When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter colIectively "the system of government prescribed by the Constitution"). If the first question is answered "yes" and the second is answered "no", the law is invalid.”

10. In ,11 the High Court set aside a conviction for using insulting words to a person in a public place. The defence had been that the defendant was not guilty as his statements were part of a communication about government or political matters. Justice McHugh observed of the Lange test that the description in the second limb, “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” did not so much qualify the “legitimate end”, but rather the fulfilment of that end. That is to say, the manner of achieving the end was what must be so compatible. He therefore proposed that the second limb should be rephrased, so as to read ‘‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?’’12

8 Comprised, at the relevant time, of Theophanous v Herald & Weekly Times (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Cunliffe v The Commonwealth (1994) 182 CLR 272; McGinty v Western Australia (1996) 186 CLR 140. 9 (1997) 189 CLR 520. 10 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568 (the Court). 11 (2004) 220 CLR 1. 12 Coleman v Power (2004) 220 CLR 1 at [93] (McHugh J). 4

11. Gummow and Hayne JJ agreed with this alteration,13 as did Kirby J.14 Kirby J, however, sounded a different protest:15

“I will never cease to protest at this ungainly phrase ‘‘appropriate and adapted’’. Just imagine what non-lawyers must make of it? It involves a ritual incantation, devoid of clear meaning. It appears to have originated nearly two hundred years ago in the opinion of Marshall CJ in McCulloch v Maryland:16

‘‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.’’

“Despite the respect properly due to that great judge and to such repeated usage, this is an instance where Homer nodded.”

12. Notwithstanding Kirby J’s criticism of the phrase “reasonably appropriate and adapted”, the Lange test, as modified in Coleman v Power, is still the test. However, Kirby J’s criticism appears to have not been forgotten: even if Homer sometimes nods,17 that does not mean that the High Court does not operate a crack team of editors.

13. The crack team got to work in McCloy v NSW.18 The plurality of French CJ, Kiefel, Bell and Keane JJ observed, of the phrase, “reasonably appropriate and adapted”:19

“Lange is a judgment of the whole Court. Its terms may be expected to reflect some compromise reached. It is not to be expected that, in its reference to a legislative measure being "reasonably appropriate and adapted" to achieve a legitimate end, which the Court equated with "proportionality"20, it was providing a complete statement of what is involved in that enquiry. Lange did identify as relevant in ACTV the availability of alternative measures, as mentioned earlier in these reasons. It identified as relevant the relationship between the legitimate end and the means by which this is achieved21. It identified as relevant the extent of the effect the legislative measure has on the freedom, when it expressed concern that the burden not be "undue"22. In so doing, it identified elements of proportionality testing.”

14. The plurality’s novel step was to articulate a tool for this proportionality testing. It had previously given indications that it regarded the question of whether a measure was

13 Coleman v Power (2004) 220 CLR 1 at [196] (Gummow and Hayne JJ). 14 Coleman v Power (2004) 220 CLR 1 at [213], [233] (Kirby J). 15 Coleman v Power (2004) 220 CLR 1 at [234] (Kirby J). 16 (1819) 17 US 159 at 206. See Leask v The Commonwealth (1996) 187 CLR 579 at 599, per Dawson J. 17 Horace, Ars Poetica, v 359. 18 (2015) 257 CLR 178. 19 McCloy v NSW (2015) 257 CLR 178 at [71] (French CJ, Kiefel, Bell and Keane JJ). 20 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562, 567 n 272. 21 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568. This is now part of the Lange test following Coleman v Power (2004) 220 CLR 1 at 50-51 [92]-[96], 78 [196], 82 [211]. 22 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569, 575. 5

reasonably appropriate and adapted to a legitimate end as an inquiry of proportionality, at least pointing to further elements of such testing:23 “The inquiry whether a statutory provision is proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so.”

15. That statement referred back to , where Crennan, Kiefel and Bell JJ had said:24

“Where there are other, less drastic, means of achieving a legitimate object, the relationship with the legislative purpose may not be said to be proportionate25, at least where those means are equally practicable and available26. Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling, as was the Tasmanian legislation in Betfair Pty Ltd v Western Australia27. In such circumstances the means could not be said to be reasonably necessary to achieve the end and are therefore not proportionate28.”

16. At the outset of the judgment in McCloy, the plurality announced that the question of infringement of the implied freedom requires application of the following propositions:29

A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may "exercise a free and informed choice as electors."30 It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.

B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:

1. Does the law effectively burden the freedom in its terms, operation or effect?

If "no", then the law does not exceed the implied limitation and the enquiry as to validity ends.

23 Unions NSW v New South Wales (2013) 252 CLR 530 at 237 [44] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 24 Monis v The Queen (2013) 249 CLR 92 at 214 [347] (Crennan, Kiefel and Bell JJ). 25 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568, where the Court referred to the example of Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. 26 North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 616; Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 306; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 134 [438]. 27 (2008) 234 CLR 418 at 479 [110]; see also North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 608. 28 North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134 CLR 559 at 616; Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 at 477 [102]. 29 McCloy v NSW (2015) 257 CLR 178 at [2]. 30 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. 6

2. If "yes" to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government31? This question reflects what is referred to in these reasons as "compatibility testing".

The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.

If the answer to question 2 is "no", then the law exceeds the implied limitation and the enquiry as to validity ends.

3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object32? This question involves what is referred to in these reasons as "proportionality testing" to determine whether the restriction which the provision imposes on the freedom is justified.

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision33;

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be "no" and the measure will exceed the implied limitation on legislative power.

17. It was the last of these three questions that the High Court described as involving the proportionality analysis, “proportionality” describing “a class of criteria which have been developed by this Court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done.”34

31 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562, 567. 32 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562. 33 Unions NSW v New South Wales (2013) 252 CLR 530 at 558-559 [55]-[56]; [2013] HCA 58. 34 McCloy v NSW (2015) 257 CLR 178 at [3]. 7

18. The plurality described the three stages of proportionality testing as “tools to assist in the determination of the limits of legislative powers which burden the freedom”.35 While it acknowledged the European source of this articulation of such tools, it was cautious to say that this did “not involve a general acceptance of the applicability to the Australian constitutional context of similar criteria as applied in the courts of other jurisdictions”.36 In applying this articulated test, the plurality held the impugned provisions in McCloy to be valid. In doing so, it expounded on this tool of proportionality testing in the context of the implied freedom, all the while maintaining it as an exposition of what is required by the Lange test.37

Compatibility testing

19. The plurality observed that the first stage of the second limb of the Lange test required that the purpose of the provision in question must be compatible with the system of representative government for which the Constitution provides. If it is not, the result will be constitutional invalidity.38

20. Key to this is the discernment of the purpose of the impugned provision. South Australia made submissions on how to approach this question in particular in . In doing so, it made the submission that opinions can differ in a given case as to whether a purpose can be discerned beyond an equation with the immediate effect of the legislation and be expressed at a higher level of abstraction. These differences in characterisation of legislative purpose, and the appropriate (and possible) level of abstraction, underpinned the division of opinion in Monis v The Queen.39

21. It would seem to be problematic to limit the inquiry to an analysis of the effect of the legislation or the means employed. Were the analysis concerned simply with identifying the purpose of pursuing the practical effects the law creates, the question would devolve into identification of those effects and whether they impose a meaningful burden on political communication. Relying in particular on APLA Ltd v Legal Services Commissioner (NSW),40 South Australia submitted that the level of abstraction at which the object of a law is to be identified for the purposes of the question of justification must, rather, lie at the

35 McCloy v NSW (2015) 257 CLR 178 at [4]. 36 McCloy v NSW (2015) 257 CLR 178 at [4]. 37 McCloy v NSW (2015) 257 CLR 178 at [66]. 38 McCloy v NSW (2015) 257 CLR 178 at [67]. 39 Monis v The Queen (2013) 249 CLR 92 at [20], [73] (French CJ); [95], [125], [214] (Hayne J); compare [317], [320], [348] (Crennan, Kiefel and Bell JJ). Compare further Attorney General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [135] (Hayne J) and [203] Crennan and Kiefel JJ) 40 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322. 8

level of identifying the mischief or mischiefs to which the law is directed:41

“The level of characterisation required by the constitutional criterion of object or purpose is closer to that employed when seeking to identify the mischief to redress of which a law is directed or when speaking of ‘the objects of the legislation’.”

22. This is to focus on the objects at a high level of abstraction. The legislative object is discerned objectively by ordinary methods of statutory construction.42 It may emerge that the law pursues multiple objects.43 Further, an object disclosed by orthodox methods of construction cannot be denied even though the law’s practical operation suggests it is deficient or not exhaustively comprehensive in achieving that object. Having said that, where a legislative measure is so ill-suited to its purpose, so deficient in achieving its object, that there in fact exists no rational connection between the law’s object and its practical operation, then the law’s connection to its purpose may be severed.44

23. Characterisation of the purpose or purposes of the legislation is ultimately a matter for the Courts. In Unions NSW v NSW (No.2), Edelman J said:45

“In circumstances where a statute expressly sets out its own objects or purposes, that express statement will almost always be relevant to identifying the objects and purposes of a particular provision. But a court should not blindly accept that the high- level, abstract purposes of the whole Act must be the exhaustive statement of the purposes of a single provision. A generally stated objects clause that applies to the entirety of a statute will, usually of necessity, be stated at a high level of generality that might not touch upon, or might barely touch upon, some provisions. Nor should a court recognise any presumption or strong inference that objects expressly stated are the exclusive, constitutionally valid purposes of every provision, characterised at the appropriate level of generality. The characterisation of the purpose of a provision at the appropriate level of generality, and the adjudication of its legitimacy, are matters for the courts46.”

41 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at [178] (Gummow J); see also McCloy (2015) 257 CLR 178 at [132], [186] (Gageler J), [227], [232] (Nettle J); Cunliffe v Commonwealth (1994) 182 CLR 272 at 301 (Mason CJ). As to the origin of the concept of “mischief” see Heydon’s Case (1584) 3 Co Rep 7a at 7b. 42 Unions NSW v New South Wales (2013) 252 CLR 530 at [50] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); McCloy (2015) 257 CLR 178 at [67] (French CJ, Kiefel, Bell and Keane JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at [178] (Gummow J). 43 See Defendant’s Defence at [44] (SCB 127); cf PS at [35](a). 44 McCloy (2015) 257 CLR 178 at [56] (French CJ, Kiefel, Bell and Keane JJ), [132], [196] (Gageler J), [320] (Gordon J); see also Tajjour v New South Wales (2014) 254 CLR 508 at [78] (Hayne J); Unions NSW v New South Wales (2013) 252 CLR 530 at [50]-[55], [64] (French CJ, Hayne, Crennan, Kiefel and Bell JJ), [140], [168] (Keane J). 45 Unions NSW v New South Wales (2019) 93 ALJR 166 at [172] (Edelman J). 46 Australian Communist Party v The Commonwealth (1951) 83 CLR 1; [1951] HCA 5. 9

24. Justice Edelman followed this up in ; Preston v Avery.47 The Tasmanian Act creating the safe access zone in that case did not contain any express statement of purpose. His Honour held that:48

“The purpose falls to be discerned, at the appropriate level of generality, by reference to the meaning or range of meanings of the words of the provision, the meanings of other provisions in the statute, historical background, and any social objective of the law49.”

25. Similarly, the plurality found the same purpose as existed in the comparable Victorian Act, from the terms and subject matter of the legislation, as well as from the Second Reading speech.50

26. Nevertheless, statements of object are the key starting point. In the 2019 Unions NSW case, the plaintiffs had used the Second Reading speech to contend for an inference of a nefarious legislative purpose. As Gageler J said:51

“Where, as here, legislation includes an express statement of statutory objects, identification of legislative purpose must start with the objects so stated, and as illuminated, to the extent their expression might be obscure or ambiguous, by the statutory context. In the face of an express statement of statutory objects, an additional object that is not only unexpressed but also constitutionally impermissible should not lightly be inferred.”

27. In ,52 the plurality of Kiefel CJ, Bell, Nettle and Keane JJ held:53

“As appears from the text and context of ss 10(1), 13(11) and 15(1), the legislative purpose of those provisions is to ensure that employees of the APS at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS. And as has been seen, the APS Values are attuned to the maintenance and protection of an apolitical public service that is skilled and efficient in serving the national interest.”

28. Justice Gordon in that case similarly described the purpose of the provisions as being “to maintain an apolitical public service of integrity and good reputation”.54 Justice Edelman identified, in context, the importance of distinguishing purpose from effect:55

“Contrary to Ms Banerji's submissions, ss 13(11) and 15 do not have the purpose, to use the words of Ms Banerji, of "cleansing APS employees of political opinions" or preventing them from expressing opinions "in ways that do not have a bearing upon the APS as an institution". As Ms Banerji submitted, those purposes would be

47 (2019) 93 ALJR 448. 48 (2019) 93 ALJR 448 at [457] (Edelman J). 49 Unions NSW v New South Wales (2019) 93 ALJR 166 at 201 [171]; 363 ALR 1 at 46; [2019] HCA 1. 50 (2019) 93 ALJR 448 at [121] (Kiefel CJ, Bell and Keane JJ). 51 Unions NSW v New South Wales (2019) 93 ALJR 166 at [79] (Gageler J). 52 (2019) 93 ALJR 900. 53 (2019) 93 ALJR 900 at [30]. 54 (2019) 93 ALJR 900 at [142]. 55 (2019) 93 ALJR 900 at [191]. 10

illegitimate. They would involve a purpose, not merely a consequence or effect of pursuing some other aim, of silencing political communication56.”

29. It is one thing to identify the purpose of an impugned law; it is quite another to establish the compatibility of the purpose. The test in McCloy expressed the question of compatibility as being “are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?”

30. In Brown v Tasmania,57 the plurality accepted an observation by the Commonwealth that this formulation appeared to be testing the legitimacy of the means of addressing the purpose, which is a step otherwise taken at the justification stage. This was a consequence of a slightly unrefined expansion of the formulated Lange test into one of structured proportionality reasoning. The plurality then re-phrased the compatibility and justification questions to read:58

2. If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

31. To be clear, then, the question of compatibility was confirmed by the Court to be referring only to the legitimacy of the purpose, not the legitimacy of the means.

32. The question of legitimacy of purpose is a matter of construction. In Unions NSW (No.2), the reduced cap on electoral expenditure applicable to third-party campaigners was held to be invalid. The plurality held this to be so on the subsequent justification analysis, being prepared to assume the legitimacy of the purpose of the impugned provision.59 Justice Gordon took a similar approach.60

33. Justice Edelman, by contrast, attacked the legitimacy of the purpose of the capping legislation in Unions, head on:61

“A purpose is illegitimate as part of the assessment of consistency with the implied freedom of political communication only where the purpose is to impair the freedom

56 See Unions NSW v New South Wales (2019) 93 ALJR 166 at 201-203 [173]-[178]; 363 ALR 1 at 46- 48. 57 (2017) 261 CLR 328. 58 Brown v Tasmania (2017) 261 CLR 328 at [104] (Kiefel CJ, Bell and Keane JJ). 59 Unions NSW v New South Wales (2019) 93 ALJR 166 at [35] (Kiefel CJ, Bell and Keane JJ). 60 Unions NSW v New South Wales (2019) 93 ALJR 166 at [154] (Gordon J). 61 Unions NSW v New South Wales (2019) 93 ALJR 166 at [175] (Edelman J). 11

of political communication. Such a conclusion of illegitimacy is not a matter of discretion or of giving latitude to Parliament.”

34. Justice Edelman accepted that there is room for legislative choice in the designing of an electoral system, but only for laws that comply with the “bare foundations” established by ss 7 and 24 of the Constitution.62 His Honour referred to the dissent of Dawson J in Langer v The Commonwealth as providing an example of a characterised purpose that was not within the ambit of Commonwealth legislative power, as it had “the intended effect of keeping from voters an alternative method of casting a formal vote which they are entitled to choose.”63

35. For Edelman J, the question of whether a law has a purpose of burdening the implied freedom depends on whether that is one of its intended aims. It is not sufficient that it is directed to political communication where that is as a means to achieve some other purpose.64

36. His Honour then considered the purpose of the impugned laws, having reference to the history of the development of the legislation, including by reference to the recommendations contained in a report of an Expert Panel and the extent to which those recommendations were relied upon in the Explanatory Note to the Bill and the Second Reading Speech. Without going through the detail here, Edelman J concluded:65

“The only rational explanation for the reduction in the cap for third-party campaigners and the introduction of the "acting in concert" offence is that in implementing the recommendations and reasoning of the Expert Panel Report, the Parliament of New South Wales acted with the additional purpose, not merely the effect, of quietening the voices of third-party campaigners relative to political parties and candidates. That purpose, which was effectively, and properly, common ground between the plaintiffs and the defendant in this case, cannot co-exist with the implied freedom of political communication.”

37. This depended on a forensic look at the history of the Bill and extrinsic materials, including the Expert Panel report, as referred to in those ordinary extrinsic materials. It constituted a forensic analysis of legislative intention.

38. The use of extrinsic materials has generally been considered more by the Court in the justification analysis, as it was by the plurality in Unions.

62 Unions NSW v New South Wales (2019) 93 ALJR 166 at [175] (Edelman J). 63 Langer v The Commonwealth (1996) 186 CLR 302 at 326, cited at Unions NSW v New South Wales (2019) 93 ALJR 166 at [176] (Edelman J). 64 Unions NSW v New South Wales (2019) 93 ALJR 166 at [177]-[178] (Edelman J). 65 Unions NSW v New South Wales (2019) 93 ALJR 166 at [222] (Edelman J). 12

Justification

39. If the test for compatibility is met, then the Court turns to whether the burden is justified. As noted above, in Brown the plurality rephrased this question as:

“is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?”

40. This is the requirement of proportionality testing. As the plurality described it in McCloy:66

“The difference between the test of compatibility and proportionality testing is that the latter is a tool of analysis for ascertaining the rationality and reasonableness of the legislative restriction, while the former is a rule derived from the Constitution itself.”

41. The problem for the plurality, however, was that the Court in Lange did not explain how the legislation may be justified. Perhaps alive to the complaint of Kirby J in Lange, it felt the need to develop the elements of what it means to be “reasonably appropriate and adapted”:67

“Lange is a judgment of the whole Court. Its terms may be expected to reflect some compromise reached. It is not to be expected that, in its reference to a legislative measure being "reasonably appropriate and adapted" to achieve a legitimate end, which the Court equated with "proportionality"68, it was providing a complete statement of what is involved in that enquiry. Lange did identify as relevant in ACTV the availability of alternative measures, as mentioned earlier in these reasons. It identified as relevant the relationship between the legitimate end and the means by which this is achieved69. It identified as relevant the extent of the effect the legislative measure has on the freedom, when it expressed concern that the burden not be "undue"70. In so doing, it identified elements of proportionality testing.”

42. The plurality then considered some of the external jurisprudence concerning tests of proportionality, identifying the three stages that I have identified above as being “generally accepted” stages to a test of proportionality.71

Suitability

43. As to suitability, the plurality said in McCloy:72

“Suitability is also referred to as "appropriateness" or "fit"73. Despite this language, it does not involve a value judgment about whether the legislature could have

66 McCloy v NSW (2015) 257 CLR 178 at [68]. 67 McCloy v NSW (2015) 257 CLR 178 at [71]. 68 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562, 567 n 272. 69 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568. This is now part of the Lange test following Coleman v Power (2004) 220 CLR 1 at 50-51 [92]-[96], 78 [196], 82 [211]. 70 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569, 575. 71 McCloy v NSW (2015) 257 CLR 178 at [79]. 72 McCloy v NSW (2015) 257 CLR 178 at [80]. 73 Barak, Proportionality: Constitutional Rights and their Limitations, (2012) at 303. 13

approached the matter in a different way. If the measure cannot contribute to the realisation of the statute's legitimate purpose, its use cannot be said to be reasonable. This stage of the test requires that there be a rational connection between the provision in question and the statute's legitimate purpose, such that the statute's purpose can be furthered. This was the approach followed in Unions NSW74. It is an enquiry which logic requires.”

44. This description has been reiterated in a number of instances.75 In the first Unions NSW case,76 Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) had the accepted, legitimate purpose of regulating the acceptance and use of political donations in order to address the possibility of undue or corrupt influence.77 However, the broad prohibition in s 96D on accepting donations other than from persons enrolled as electors was held to:78

“not reveal any purpose other than that political donations may not be accepted from persons who are not enrolled as electors, or from corporations or other entities. The context of the other provisions of Pt 6 does not illuminate the purpose of s 96D, rather they point up its absence of evident purpose and lack of connection to the scheme in Pt 6.

45. In other words, as the plurality in McCloy characterised this conclusion in terms of the newly introduced language of suitability:

“Although the purpose of Pt 6 of the EFED Act was accepted as legitimate79 in Unions NSW, in the sense referred to in Lange80, the provisions of Pt 6 in question in Unions NSW81 were held to be invalid because they could not be seen as rationally connected to that purpose.”

46. In other contexts, challenges to suitability can be more difficult. In Banerji, Ms Banerji submitted:82

“Anonymous comment of the kind engaged by Ms Banerji has no connection with the person’s status as an APS employee and, thus, no connection with the delivery of services by the APS as an institution in an apolitical manner. To regulate such conduct is not, therefore, to make any contribution to the end pursued.”

47. The High Court did not accept this:

“Regardless of the political complexion of the government of the day, or its policies, it is highly desirable if not essential to the proper functioning of the system of

74 (2013) 252 CLR 530 at 557-558 [50]-[55], 561 [64], 579 [140], 586 [168]. 75 Comcare v Banerji at [33] (Kiefel CJ, Bell, Keane and Nettle JJ); Brown v Tasmania (2017) 261 CLR 328 at 370 [132]-[133] (Kiefel CJ, Bell and Keane JJ), 418 [281] (Nettle J); Clubb (2019) 93 ALJR 448 at 462 [6] (Kiefel CJ, Bell and Keane JJ), 507 [266(2)] (Nettle J), 544 [463] (Edelman J). 76 Unions NSW v NSW (2013) 252 CLR 530. 77 Unions NSW v NSW (2013) 252 CLR 530 at [51]. 78 Unions NSW v NSW (2013) 252 CLR 530 at [52]. 79 Unions NSW v New South Wales (2013) 252 CLR 530 at 546 [9], 579 [138]. 80 (1997) 189 CLR 520 at 561-562. 81 Election Funding, Expenditure and Disclosures Act 1981 (NSW), ss 96D and 95G(6). 82 Comcare v Banerji, Respondent’s submissions [58]. 14

representative and responsible government that the government have confidence in the ability of the APS to provide high quality, impartial, professional advice, and that the APS will faithfully and professionally implement accepted government policy, irrespective of APS employees' individual personal political beliefs and predilections83.”

48. The question of suitability being one of rational connection, it is unlikely to require an assessment of extrinsic materials. It is a question of logic. The second and third parts of the test, being those of necessity and adequacy of balance, seem to require broader inquiries. Critical to those inquiries in the first instance, however, is the extent of the burden. To this end, analysis of the extent of any burden is assisted by stepping out methodically its qualities.

Extent of the Burden

49. This has been recognised as a matter of general observation, such that “laws imposing restrictions on the time, place and manner of political communication have been understood as forming a category that requires a lesser justification.”84 The plurality in Brown v Tasmania observed that ‘[i]t is possible that a slight burden on the freedom might require a commensurate justification. Certainly, a heavy burden would ordinarily require a significant justification.”85 But this is ultimately a question of “the incremental effect of that law on the real-world ability of a person or persons to make or to receive communications which are capable of bearing on electoral choice.”86

50. It is worth thinking about what the integers of such a burden might be, beyond the possibilities of time, manner and place. Thus as South Australia submitted in Clubb, the various limits on that real-world ability may be:

50.1. spatial. In Attorney-General (SA) v Adelaide City Corporation,87 the prohibition made by the relevant by-law was limited to the prescribed forms of activity occurring “on any road”.88 In Brown v Tasmania, the spatial burden was imposed by the descriptions “business premises” and “business access areas”, the

83 See and compare McManus v Scott-Charlton (1996) 70 FCR 16 at 25-26 per Finn J; Federal Commissioner of Taxation v Day (2008) 236 CLR 163 at 180-181 [34] per Gummow, Hayne, Heydon and Kiefel JJ; [2008] HCA 53. 84 Brown v Tasmania (2017) 91 ALJR 1089 at [478] (Gordon J), referring to Coleman v Power (2004) 220 CLR 1 at [91]. 85 Brown v Tasmania (2017) 91 ALJR 1089 at [128] (Kiefel CJ, Bell and Keane JJ). 86 Brown v Tasmania (2017) 91 ALJR 1089 at [188] (Gageler J). 87 (2013) 249 CLR 1; Brown v Tasmania (2017) 91 ALJR 1089. 88 Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [26] (French CJ). 15

vagueness of which terms proved important to the plurality in assessing the nature and extent of the burden in its real-world operation;89

50.2. temporal. In Attorney-General (SA) v Adelaide City Corporation,90 the prohibition imposed primarily by spatial criteria was modified in respect of periods of time during the course of a federal, state or local government election, or during the course of a referendum.91 In ACTV v The Commonwealth,92 the burden was imposed for the duration of election periods;

50.3. conditional or absolute. Attorney-General (SA) v Adelaide City Corporation,93 the prohibition was subject to a requirement of “permission”;

50.4. drawn by reference to the character of the communication. In Attorney-General (SA) v Adelaide City Corporation,94 the prohibited conduct was worded in terms, “preach, canvass, harangue, tout for business or conduct any survey or opinion poll” and “give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter” Exceptions to these prohibitions related to particular types of communication during elections and referenda.95 In Monis v The Queen,96 the prohibition was on communications that would be reasonably regarded as “menacing, harassing or offensive”;

50.5. drawn by reference to the content of the communication. In ACTV v The Commonwealth,97 the prohibition was on communication in relation to “political matter”.

50.6. media-specific. In ACTV v The Commonwealth,98 the prohibition was on broadcasting. In Monis v The Queen,99 the prohibition related to the use of a postal service;

50.7. monetary. In Unions NSW v State of New South Wales, the prohibition effected a restriction upon funds available to political parties and candidates to meet the

89 Brown v Tasmania (2017) 91 ALJR 1089 at [40], [73], [77]-[79], [84], [95], [149] (Kiefel CJ, Bell and Keane JJ). 90 (2013) 249 CLR 1; Brown v Tasmania (2017) 91 ALJR 1089. 91 Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [68] (Hayne J). 92 (1992) 177 CLR 106. 93 (2013) 249 CLR 1; Brown v Tasmania (2017) 91 ALJR 1089. 94 (2013) 249 CLR 1; Brown v Tasmania (2017) 91 ALJR 1089. 95 Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [74] (Hayne J). 96 Monis v The Queen (2013) 249 CLR 92. 97 ACTV v The Commonwealth (1992) 177 CLR 106. 98 ACTV v The Commonwealth (1992) 177 CLR 106. 99 Monis v The Queen (2013) 249 CLR 92. 16

costs of political communication by restricting the source of funds.100 In McCloy v New South Wales, the burden was of a similar monetary character.101

51. More than one of those types of real-world limits may operate together,102 or they might be imposed in a discriminatory manner (which has been observed as generally requiring a strong justification, reflecting the risk that minority opinions might be selectively impeded).103 They may be deployed at the point of the person making the communication or, by the selection of media limits, at the point of what would be its receipt.

52. Furthermore, the factual circumstances of the communication in issue in a particular case may provide “useful examples” of the effect of the legislation on political communication more broadly.104

53. The extent of the burden might require an assessment of processes as well as content.105 Thus in Brown v Tasmania, the plurality emphasised that the practical operation of the Workplaces (Protection from Protesters) Act 2014 in providing for protesters to be removed could depend on a reasonable, but mistaken belief of a police officer that a protester is situated within a business access area.106 The vagueness of the defining terms, combined with the fact that it fell to a police officer to make an instant, quantitative judgment about the existence of a statutory boundary in a particular place, made the operation and practical effect of the resultant burden disproportionate to the purpose served.107

54. In Banerji, by contrast, Gordon J observed:108

“And, as has been explained, the impugned provisions are not self-executing. The impugned provisions provide for both a just and appropriate sanction and transparency in that their application requires procedural fairness and is subject to review.”

100 Unions NSW v State of New South Wales (2013) 252 CLR 530 at [38] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). 101 McCloy v New South Wales (2015) 257 CLR 178 at [24] (French CJ, Kiefel, Bell and Keane JJ). 102 See, e.g., Levy v Victoria (1997) 189 CLR 579, where the prohibition was on entering specified hunting areas within specified dates. 103 McCloy v New South Wales (2015) 257 CLR 178 at [222] (Nettle J); Brown v Tasmania (2017) 91 ALJR 1089 at [202] (Gageler J); See Unions NSW v State of New South Wales (2013) 252 CLR 530 at [136] (Keane J); ACTV v The Commonwealth (1992) 177 CLR 106 at 131-132, 145-146, 171-173, 218, 236. 104 Brown v Tasmania (2017) 91 ALJR 1089 at [90] (Kiefel CJ, Bell and Keane JJ). 105 Comcare v Banerji (2019) 93 ALJR 900 at [138] (Gordon J). 106 Brown v Tasmania (2017) 261 CLR 328 at 1107 [73] (Kiefel CJ, Bell and Keane JJ). 107 Brown v Tasmania (2017) 261 CLR 328 at [79], [118], [144], [150], [152] (Kiefel CJ, Bell and Keane JJ). 108 Comcare v Banerji (2019) 93 ALJR 900 at [158] (Gordon J). 17

55. Once the extent of the burden has been characterised, it is possible to move to the next stages of proportionality testing.

Necessity

56. Necessity describes that part of the tool of proportionality testing that was signalled earlier, in Monis109 and the first Unions NSW case.110 In McCloy, the plurality said:111

“The second stage of the test – necessity – generally accords with the enquiry identified in Unions NSW112 as to the availability of other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling. If such measures are available, the use of more restrictive measures is not reasonable and cannot be justified.

It is important to recognise that the question of necessity does not deny that it is the role of the legislature to select the means by which a legitimate statutory purpose may be achieved. It is the role of the Court to ensure that the freedom is not burdened when it need not be. Once within the domain of selections which fulfil the legislative purpose with the least harm to the freedom, the decision to select the preferred means is the legislature's113.”

57. The precise nature of this inquiry is likely to continue to have to be worked out in context. In a number of cases, challengers to legislation have offered models that are less burdensome on the implied freedom, but which have nonetheless not succeeded. One key hurdle is that the alternative must be an “equally effective means of achieving the legislative object.” In Murphy v Electoral Commissioner,114 which was not an implied freedom case, the plaintiff in challenging the closing of the Electoral Rolls sought to import McCloy-style proportionality testing to whether the period allowed for closing the electoral rolls was compatible with the system of representative government prescribed by the Constitution, and relied on certain state schemes to show that there were less burdensome options available.

58. The Court rejected the applicability of the test. Kiefel J, a key architect of structured proportionality testing in the context of the implied freedom, observed:115

“Reference to these other statutory schemes shows that there is more than one electoral system to choose from. It does not show that these systems are capable of achieving the same objectives that the Electoral Act does. They reflect policy choices of those States' legislatures, which no doubt balance the delays and costs, which must inevitably be associated with keeping the Roll open, against other objectives.

109 Monis v The Queen (2013) 249 CLR 92 at 214 [347] (Crennan, Kiefel and Bell JJ). 110 Monis v The Queen (2013) 249 CLR 92 at 214 [347] (Crennan, Kiefel and Bell JJ). 111 McCloy v NSW (2015) CLR 178 at [81]-[82]. 112 (2013) 252 CLR 530 at 556 [44]. 113 Barak, Proportionality: Constitutional Rights and their Limitations, (2012) at 409. 114 (2016) 261 CLR 28. 115 Murphy v Electoral Commissioner (2016) 261 CLR 28 at [72]-[73] (Kiefel J). 18

“It cannot be concluded that the systems chosen elsewhere would be as efficient as that which operates under the Electoral Act, with the level of certainty which is achieved by the closure of the Rolls and the suspension period. Nor can it be concluded on the facts available that adopting such a system would not require additional resources – for example, by way of staff and computer equipment – and therefore further funding by government. The alternative systems cannot therefore be said to be equally practicable.”

59. Similarly, in Unions NSW (No.2), the plurality accepted that there was a “domain of selections” open to Parliament in achieving the legitimate statutory purpose. Rather, “[i]t is the role of the Court to ensure that the freedom is not burdened when it need not be.”116 However, notwithstanding that domain, the plurality made it clear that justification of a law with respect to the implied freedom, in particular in the necessity analysis, may well require evidence. In Unions NSW (No.2), the plurality when faced with an absence of research as to the sufficiency of the legislated $500,000 cap on third party campaigning, observed:

“It must of course be accepted that Parliament does not generally need to provide evidence to prove the basis for legislation which it enacts. However, its position in respect of legislation which burdens the implied freedom is otherwise. Lange requires that any effective burden be justified117. As the Commonwealth conceded in argument, the Parliament may have choices but they have to be justifiable choices where the implied freedom is concerned.”

60. Justice Nettle agreed with the plurality that in circumstances where the expert panel had indicated more evidence was needed, the failure to obtain that evidence was fatal. Nevertheless, he observed:

“As the plurality observe118, Lange requires119 that any effective burden on the implied freedom be justified. And what is required to justify an effective burden on the implied freedom depends on the circumstances of the case. Sometimes120, perhaps often, the need for a limit on electoral expenditure or other legislative measure which burdens the implied freedom may be self-evident or appear with relative clarity without the need for extensive if indeed any evidence on the point. Other times121, the need will be apparent from expert reports or commissions of inquiry which precede the enactment of the legislation. And in some circumstances, the fact that a plaintiff is unable to identify any obvious and compelling alternative

116 Unions NSW v NSW (2019) 93 ALJR 166 at [47] (Kiefel CJ, Bell and Keane JJ). 117 McCloy v New South Wales (2015) 257 CLR 178 at 213-214 [68]-[69]; Brown v Tasmania (2017) 261 CLR 328 at 359 [88], 361 [92]. 118 See reasons of Kiefel CJ, Bell and Keane JJ at [45]. 119 (1997) 189 CLR 520 at 567-568; McCloy (2015) 257 CLR 178 at 193-195 [2] per French CJ, Kiefel, Bell and Keane JJ, 258 [220] per Nettle J. 120 See, eg, Langer v The Commonwealth (1996) 186 CLR 302 at 318 per Brennan CJ, 334 per Toohey and Gaudron JJ; [1996] HCA 43; Muldowney v South Australia (1996) 186 CLR 352 at 366- 367 per Brennan CJ, 374-375 per Toohey J, 375-376 per Gaudron J; [1996] HCA 52; Levy (1997) 189 CLR 579 at 597-599 per Brennan CJ, 608-609 per Dawson J, 614-615 per Toohey and Gummow JJ, 619-620 per Gaudron J, 627-628 per McHugh J, 647-648 per Kirby J. 121 See, eg, McCloy (2015) 257 CLR 178 at 208-209 [49]-[53], 211 [61] per French CJ, Kiefel, Bell and Keane JJ, 250-251 [191]-[196] per Gageler J, cf at 272-273 [266]-[268] per Nettle J. 19

productive of a significantly lesser burden on the implied freedom may be enough to conclude that the impugned law is needed.”

61. Then in Comcare v Banerji, in response to a submission that the necessity test was not met because a law that excluded anonymous communications would be equally effective, the Court held:122

“The argument must be rejected. … "anonymous" communications are at risk of ceasing to be anonymous, and thereby damaging the integrity and good reputation of the APS as an apolitical and professional public service. Further, as has been explained, depending on the circumstances and content of an "anonymous" communication, the communication may damage the good reputation of the APS even while it remains anonymous. Consequently, if the impugned provisions were restricted in their operation to communications other than "anonymous" communications, the impugned provisions would cease to operate as a deterrent against a significant potential source of damage to the integrity and good reputation of the APS. Restricting their operation to communications other than "anonymous" communications is for that reason not an obvious and compelling alternative to their present form123.”

62. Perhaps reflecting the earlier identification of now-described “necessity” as the proportionality proto-tool, I think that there remains scope for the Court to explore the scope and impact of that part of the justification analysis that, as a tool, it represents.

Adequacy of Balance

63. Then, finally, with respect to adequacy of balance, the plurality in McCloy said:124

“The last stage of the Lange test did not mandate an enquiry limited to the extent of the burden on the freedom. The question whether a statutory effect on the freedom is "undue" or "impermissibly burdens" the freedom must, logically, bring into consideration the statutory purpose. To leave it out of consideration is to deny the most important aspect of justification from the perspective of the legislature. The cases before and after Lange speak in terms of legislative justification as earlier mentioned. The enquiry must be whether the burden is undue, not only by reference to the extent of the effect on the freedom, but also having regard to the public importance of the purpose sought to be achieved. This is the balance which necessarily, and logically, inheres in the Lange test.”

64. The plurality in Brown v Tasmania rejected a submission by the Attorney-General for the Commonwealth that the this stage need not be engaged in where the burden is other than “direct and substantial”, on the basis that Lange “requires that any effective burden on the freedom must be justified”.125 It should be noted, however, that it is here that

122 Comcare v Banerji (2019) 93 ALJR 900 at [36] (Kiefel CJ, Bell, Keane and Nettle JJ) 123 See and compare Tajjour (2014) 254 CLR 508 at 565-566 [90] per Hayne J. 124 McCloy v NSW (2015) CLR 178 at [86] (emphasis added). 125 Brown v Tasmania (2017) 91 ALJR 1089 at [127] (Kiefel CJ, Bell and Keane JJ). 20

opposition by Gageler J and Gordon J to this tool of structured proportionality testing has received its greatest voice.

65. In disputing the usefulness of structured proportionality testing on the basis that it establishes a structure more relevant to a rights analysis,126 Gageler J has criticised this third stage as “convey[ing] no more than that the judgment the court is required to make can turn on difficult questions of fact and degree.”127 His Honour’s concern, with respect to the third stage of the test, also articulated by Gordon J,128 is that such a test provides no guidance as to how the incommensurables of importance of purpose and extent of restriction are to be weighted or as to how the adequacy of balance is to be gauged.129

66. Fundamental to this criticism is the concern voiced by Gordon J,130 to the effect that the balancing exercise engaged in during the third stage carries a heightened danger of the courts substituting their own assessment for that of the legislative decision-maker as to the importance of the purpose. This is in circumstances where it has been explicitly recognised by the plurality that the balancing exercise involves the making of value judgments.131 At least where the object of the law is not itself the promotion, protection or enhancement of the constitutionally prescribed system of government,132 a value judgment of “importance” of purpose will be required.

67. I have already commented on how the extent of the burden may be measured. To assess the importance of the purpose seems a conceptually more difficult exercise. The following considerations may in a given case become relevant:

67.1. It is necessary to discern the importance that Parliament has expressly or implicitly ascribed to that purpose. This may present expressly or implicitly in the indicators used to identify the purpose itself.133 It may be apparent in terms, for example, from an expression of the objects of the Act or by some Parliamentary Declaration.

67.2. Care need be taken, however, to avoid circular reasoning. It is difficult, for example, to see that it would be permissible to rely on the actual burden on the freedom imposed as being demonstrative of the importance of the manifest purpose. To do so may tend to allow Parliament to recite itself into power by

126 Brown v Tasmania (2017) 91 ALJR 1089 at [160] (Gageler J). 127 Brown v Tasmania (2017) 91 ALJR 1089 at [160] (Gageler J). 128 Brown v Tasmania (2017) 91 ALJR 1089 at [432] (Gordon J). 129 Brown v Tasmania (2017) 91 ALJR 1089 at [160] (Gageler J). 130 Brown v Tasmania (2017) 91 ALJR 1089 at [435] (Gordon J). 131 McCloy v New South Wales (2015) 257 CLR 178 at [2] (French CJ, Kiefel, Bell and Keane JJ). 132 Brown v Tasmania (2017) 91 ALJR 1089 at [438] (Gordon J). 133 Brown v Tasmania (2017) 91 ALJR 1089 at [209] (Gageler J). 21

foreclosing the result of the balancing process of the third stage. Identifying the purpose with the requisite degree of abstraction will assist in this regard, as it will ensure that “the means adopted by a law” are separated “from the end that it is designed to pursue”.134

67.3. It would be permissible to have regard to the Second Reading Speech or Explanatory Memorandum insofar as such is capable of contributing to an understanding of Parliament’s assessment of the importance of the purpose. To do so would not be to go beyond the bounds of common law135 or statutory prescriptions136 as to the use that may be made of extrinsic materials, as what is in question is not the interpretation of a provision of an Act, but an assessment of the value judgments made as to the importance of the purpose served.

67.4. None of this can be a matter of deference to Parliament’s assessment.137 The exercise is evidential. But where Parliament has identified its view of the importance of an articulated purpose, that view, being by definition a representative opinion, becomes a critical integer of the Court’s assessment.

67.5. The observation that the Court is, in the assessment of importance of purpose, “without … access to all of the political considerations”138 that contributed to the enactment illustrates the potential usefulness of receipt by the Court of evidence that is capable of ameliorating, if not filling completely, that gap in knowledge. As Mason CJ noted in his dissenting judgment in Cunliffe v The Commonwealth, which turned upon a consideration of proportionality, evidence of “the scope and extent of the alleged mischief” might be “agreed”, “proved”, the subject of “judicial notice” or established “by legislative findings”.139 Ordinarily, proof would be via evidence procured by the executive relevant to the social or economic scale, scope and impact or potential impact of the particular, targeted mischief. In light of the plurality’s emphasis on evidence in Unions NSW (No.2) in the context of the necessity analysis, evidence is increasingly likely to be required.

67.6. Nevertheless, the plurality in Banerji were prepared to accept the importance of the impugned sections in the APS Act:140

134 Brown v Tasmania (2017) 91 ALJR 1089 at [322] (Gordon J); Tajjour v New South Wales (2014) 254 CLR 508 at [163] (Gageler J). 135 Owen v South Australia (1996) 66 SASR 251 at 255-256 (Cox J). 136 Interpretation of Legislation Act 1984 (Vic), s 35 (b); Acts Interpretation Act 1901 (Cth), s 15AB. 137 McCloy v New South Wales (2015) 257 CLR 178 at [90]-[91] (French CJ, Kiefel, Bell and Keane JJ). 138 Brown v Tasmania (2017) 91 ALJR 1089 at [436] (Gordon J). 139 Cunliffe v The Commonwealth (1994) 182 CLR 272, 304 (Mason CJ). 140 Comcare v Banerji at [31] (Kiefel CJ, Bell, Keane and Nettle JJ). 22

“There can be no doubt that the maintenance and protection of an apolitical and professional public service is a significant purpose consistent with the system of representative and responsible government mandated by the Constitution. Section 64 of the Constitution, which provides for the establishment of departments of state141, and s 67, which provides for the appointment and removal of officers of the Executive Government other than Ministers142, attest to the significance of the APS as a constituent part of the system of representative and responsible government mandated by the Constitution.”

67.7. In Preston, Edelman J, who accepted that the burden of the protest prohibition was both “deep and wide”, similarly observed that “the purpose of the protest prohibition was of great importance to Parliament”, observing that the legislation’s “social human rights goals involving respect for the dignity of the human person involve deep-seated issues of public policy within the legal system generally”.143 He also, however, then turned to the extrinsic materials preceding the Reproductive Health Act, which identified the “extreme importance” of the protest prohibition.144

68. There is no template for assessing the importance of a purpose. From a practical perspective, the more information and evidence that is recognised as potentially being available, the more amenable the Court is likely to be to accord it importance. A failure to produce such evidence has the capacity to be detrimental where the importance of the purpose cannot be assessed by reference to “deep seated issues of public policy” or long constitutional or legislative history.

141 See Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 435-436 per Dawson, Toohey and Gaudron JJ; [1997] HCA 36; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 402-403 [13]-[15] per Gleeson CJ, 459-460 [210]-[212] per Gummow and Hayne JJ; [2001] HCA 51; McCloy (2015) 257 CLR 178 at 224 [105] per Gageler J. 142 See Bradshaw v The Commonwealth (1925) 36 CLR 585 at 589-590 per Knox CJ; [1925] HCA 42; Edwards v The Commonwealth (1935) 54 CLR 313 at 323-324 per Dixon J; [1935] HCA 84; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 92-93 [120] per Gageler J; [2016] HCA 1. 143 Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448 at [499] (Edelman J). 144 Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448 at [500] (Edelman J).