By Anne Carter
In McCloy v New South Wales  HCA 34 four members of the High Court endorsed, for the first time, a ‘uniform analytical framework’ of proportionality to determine whether the implied constitutional freedom of political communication had been infringed. Although there was broad consensus amongst the Court as to the result of the case (with Nettle J dissenting only in respect of the prohibition on donations from property developers), the Court divided in respect of the role of proportionality analysis. In this post I consider how the joint judgment’s approach refines — or perhaps rewrites — the traditional two-part Lange test, and I compare this with the approach of Gageler J. In addition, I make some observations about the possible implications of the decision.
The Lange Test: A ‘cumbersome and inexact phrase’?
Since the Court’s unanimous decision in Lange v Australian Broadcasting Corporation  HCA 25 in 1997, the High Court has consistently confirmed, with only slight modifications, a two-stage test for assessing limitations on the implied freedom of political communication. This by-now familiar test contains two limbs. First, it asks whether the law effectively burdens freedom of communication about government or political matters either in its terms, operation or effect. Secondly, if the law effectively burdens that freedom, it asks whether the law is 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.
The prevailing view, in Lange and the cases which followed it, was that ‘proportionality’ was simply an alternative formulation of the ‘reasonably appropriate and adapted’ test. In Lange itself the Court noted that the relevant test had been expressed in different ways and that it was not necessary to distinguish between the two concepts (at 562). In a footnote the Court observed that there was ‘little difference’ between the two tests (at 572). This view, that the two expressions are simply alternative ways of expressing the same test, has continued to be influential. Chief Justice Gleeson in Mulholland v Australian Electoral Commission  HCA 41, for instance, noted that ‘whichever expression is used, what is important is the substance of the idea it is intended to convey’ (at ).
Although the Court has continued to prefer the expression ‘reasonably appropriate and adapted’, this formulation has not been without its critics. In Mulholland Kirby J, building upon his reasons in Levy v Victoria  HCA 31 and Coleman v Power  HCA 39 critiqued the phrase ‘appropriate and adapted’ as being ‘inappropriate and ill-adapted to perform the constitutional function repeatedly assigned to it by members of this Court’ (at ). He considered that the expression ‘proportionality’ better captured the ‘actual process of constitutional reasoning’ (at ). More recently, Crennan, Kiefel and Bell JJ made similar criticisms of the ‘appropriate and adapted’ terminology in Monis v The Queen  HCA 4. In particular, their Honours queried whether this ‘more cumbersome and inexact phrase’ should be continued (at ). Their Honours observed that the phrase ‘provides no guidance as to its intended application and tends to obscure the process undertaken by the court’ (at ).
As well as these differences in terms of how the relevant test should be expressed, in recent cases some further divisions have emerged amongst members of the Court. In Unions NSW v NSW  HCA 58, Keane J was critical of the ‘indefinite and highly abstract language of Lange’ and proposed a simplified test (at ). In the more recent decision of Tajjour v New South Wales  HCA 35, Crennan, Kiefel and Bell JJ developed their reasoning in Monis to more explicitly incorporate questions of ‘suitability’ and ‘necessity’ into the Lange questions (at –). They stopped short of applying a test of ‘strict proportionality’ but hinted that this question could arise in a future case (at ). Gageler J in Tajjour noted that while proportionality was an alternative way of describing whether a law is ‘reasonably appropriate and adapted’, the Court had not yet adopted a ‘generic proportionality analysis’ (at ). There was also some divergence of views as to whether the Lange test involved varying levels of scrutiny. Against this backdrop McCloy gave the Court an opportunity to clarify the nature and role of proportionality within the Lange framework.
The McCloy test: A ‘uniform analytical framework’?
The joint judgment in McCloy noted that the ‘only question’ for the Court was ‘what is required by the Lange test’ (at ). It was on this question — and in particular on the role of proportionality within this test — that the major dividing lines emerged.
Although none of the parties or interveners in McCloy sought to challenge the Lange decision or its underlying justifications, the joint judgment (French CJ, Kiefel, Bell and Keane JJ) took the opportunity to clarify, and develop, the role of proportionality within the Lange test. The judgment confirmed that the Lange test remains authoritative, but noted that as a unanimous judgment it ‘may be expected to reflect some compromise’ (at ). In order to give content to, and explain, the Lange test the joint judgment identified three key questions (at ):
- Does the law effectively burden the freedom in its terms, operation or effect? This question, which is the first of the two Lange questions, remains unchanged.
- If the answer to the first question is ‘yes’, are the purpose of the law, and the means adopted to achieve that purpose, legitimate, in the sense that they are compatible with the constitutionally prescribed system of representative government? This was described as involving ‘compatibility testing’.
- If the answer to the second question is ‘yes’, is the law reasonably appropriate and adapted to advance that legitimate object? This was described as involving ‘proportionality testing’.
As Scott Stephenson has noted, the joint judgment turned to comparative constitutional scholarship to justify and explain its revised approach to proportionality. The joint judgment went to some lengths to articulate the benefits of adopting a proportionality test, stressing that the structured nature of proportionality would provide a more ‘transparent’ and ‘objective’ approach. As part of this greater transparency, the joint judgment considered that value judgments would become more explicit. At the same time, however, the joint judgment sought to emphasise consistency with past decisions. The Lange framework was retained, at least as a guiding structure, and the judgment sought to draw parallels with previous decisions of the Court.
The Unconvinced Minority: Retaining the Lange Approach
In contrast to the joint judgment’s approach, Gageler J, Nettle J and Gordon J were not persuaded that there was any need to alter the traditional Lange test. Although they all acknowledged that there would be difficult questions of judgment, they saw no need to depart from the ‘reasonably appropriate and adapted’ formulation. Justice Gordon, for instance, observed that this test had been applied ‘without apparent difficulty’ since the Lange decision itself (at ). Justice Nettle noted that some differences of view had emerged in recent decisions of the Court. While he took the view that the ‘standard of appropriateness and adaptedness’ does vary according to the nature and extent of the burden on the freedom, he did not consider it was necessary in this case to decide whether ‘strict proportionality’ formed part of the Lange inquiry (at ).
The most pronounced reservations to the adoption of proportionality came from Gageler J. His Honour reached the same conclusion as the majority of the Court, finding that the challenged provisions did not impermissibly burden the implied freedom of political communication. Following the approach set out by Mason CJ in Australian Capital Television Pty Ltd v Commonwealth  HCA 1, and endorsed by Gleeson CJ in Mulholland, he considered that where the challenged restricted political communication in the conduct of elections, the standard was one of ‘compelling justification’ (at –). Although reaching the same result, he was sceptical about adopting a ‘generic’ proportionality test in the Australian constitutional setting (at ). It was not, according to Gageler J, necessary to choose between the alternative expressions ‘reasonably appropriate and adapted’ and ‘proportionality’ (at ):
This case does not require a choice to be made between the alternative expressions of the ‘reasonably appropriate and adapted’ formulation. Much less does this case warrant consideration of the benefits and detriments of the wholesale importation into our constitutional jurisprudence, under the rubric of proportionality, of a particular and prescriptive form of proportionality analysis drawn from that which has come to be applied in relation to the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights.
Justice Gageler expressed two principal reservations with the joint judgment’s approach to proportionality. First, he took issue with the ‘standardised’ nature of the plurality’s approach, expressing concern that unqualified tests of ‘suitability’ and ‘necessity’ may not be appropriate in every case (at ). He observed, in particular, that proportionality can be applied with varying degrees of intensity. Secondly, Gageler J was concerned that the notion of balancing, which was developed in the context of express rights, did not properly reflect the reasons underpinning the implied freedom of political communication (at –).
What has changed?
Importantly, McCloy represents the emergence of a clear majority favouring a structured proportionality test. While in the past proportionality was often seen as an alternative expression — and perhaps interchangeable with — the ‘appropriate and adapted’ test, the joint judgment’s approach heralds an explicit test of proportionality. It is a sequential test meaning that each part must be satisfied before proceeding to the next stage. In addition, the joint judgment has expressly confirmed that ‘balancing’, or ‘strict proportionality’, forms part of the inquiry (at ). Although the Court sought to distance its approach from the balancing performed by European courts (at ), and placed little emphasis on balancing in its application of the test (at ), it is now clear that balancing of some kind does form part of the constitutional test. However, in contrast to Gageler J’s standard of ‘compelling justification’, the plurality’s generalised test of proportionality gives little guidance on how the various factors are to be weighed, meaning that in practice the application of proportionality is likely to be malleable.
Whether the application of the revised approach to proportionality leads to significantly different results in practice remains to be seen. In McCloy itself six of the judges held that all of the challenged provisions were valid, with Nettle J dissenting only in respect of the prohibition on donations from property developers. Adrienne Stone has previously argued that the second stage of the Lange test is in fact the ‘conceptual equivalent’ to a test of proportionality, and that similar considerations need to be taken into account in applying both tests. When viewed in this light, it may be that the joint judgment is making explicit what was previously implicit. Whether this is all that the joint judgment is doing appears to be doubted by the other members of the Court who expressed considerable reservations about the revised approach.
Ultimately whether the joint judgment’s approach represents a change of emphasis or a change of substance will be something to be worked out in future judgments. The reformulation of the Lange framework to incorporate a structured proportionality test leaves many questions unanswered. There is some hint that a similar approach might be extended to other areas but this is not yet certain. There are also questions (as raised by Gageler J) about whether the new approach is consistent with the reasons underpinning the implied freedom. The full implications of a more express test of ‘balancing’, and whether it affects the substance or style of constitutional reasoning, are not yet clear. What is clear is that the consensus forged in Lange appears, for now, to have been eroded.
AGLC3 Citation: Anne Carter, ‘McCloy Symposium: Anne Carter on Proportionality and Its Discontents’ on Opinions on High (3 December 2015) <https://blogs.unimelb.edu.au/opinionsonhigh/2015/12/03/carter-mccloy>.
Anne Carter is a PhD Candidate and Teaching Fellow at Melbourne Law School.