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 ). Continue reading