McCloy Symposium: Anne Carter on Proportionality and Its Discontents

By Anne Carter

McCloy Case Page

In McCloy v New South Wales [2015] 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 [1997] 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 [2004] 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 [34]).

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 [1997] HCA 31 and Coleman v Power [2004] 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 [247]). He considered that the expression ‘proportionality’ better captured the ‘actual process of constitutional reasoning’ (at [250]). Continue reading

McCloy Symposium: Scott Stephenson on the Complications and Consequences of Constitutional Comparison

By Dr Scott Stephenson

McCloy Case Page

In McCloy v New South Wales [2015] HCA 34 for the first time a majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) endorsed proportionality analysis as the appropriate framework for determining whether a law violates the freedom of political communication, an implication derived from the Australian Constitution. In doing so, the majority turned to comparative materials, especially comparative constitutional scholarship, to explain and justify its decision. In this post, I consider the complications and consequences of the Court’s comparative engagement, examining the difficulties associated with drawing on the scholarship in this field before considering some implications of the Court’s move. I suggest that it gives greater prominence to two dimensions of constitutional adjudication that are typically not accorded priority, namely the value in providing legislatures with clarity about the limits of their powers and making value judgments explicit.

Complications: The necessary yet difficult task of comparatively engaging with proportionality

The decision to endorse proportionality analysis requires careful consideration of comparative case law and scholarship to ascertain what, precisely, proportionality analysis entails. While it may be, as the majority suggest, a ‘uniform analytical framework’ (at [74]), that framework does not have a uniform formulation or application. Some jurisdictions adopt a three-stage test, while others adopt a four-stage test (see [79] fn 100). In some jurisdictions, the majority of laws that fail proportionality analysis do so at the ‘necessity’ (least restrictive means) stage, while in others it is at the ‘adequate in its balance’ (proportionality in the strict sense) stage (Grimm, 2007). Continue reading

McCloy Symposium: Joo-Cheong Tham Sounds a Cautionary Note on Political Equality as a Constitutional Principle

By Dr Joo-Cheong Tham

McCloy Case Page

In its 1974 decision, Buckley v Valeo, 424 US 1 (1975), the United States Supreme Court infamously ruled that:

the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.

Decades later, Buckley remains powerfully influential with the Supreme Court in McCutcheon v Federal Election Commission stating last year that:

No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field’, or to ‘level electoral opportunities’, or to ‘equalize the financial resources of candidates’.

In McCloy v New South Wales [2015] HCA 34, the High Court emphatically rejected the approach of US Supreme Court as to the illegitimacy of political equality or fairness as a legislative objective. On the contrary, under the Commonwealth Constitution, ‘(l)egislative regulation of the electoral process directed to the protection of the integrity of the process is … prima facie legitimate’.

Central to the conclusion that political equality and fairness are legitimate legislative objectives was the High Court’s insistence that political equality was a constitutional principle. Yet, the latter was hardly necessary for the former conclusion. If elections are to be ‘free and fair’, it would seem absurd to deny Parliament the ability to regulate with the view to advancing electoral fairness, regardless of what the Constitution said about political equality. As McLachlin CJ and Major J observed in the Canadian Supreme Court decision in Harper v Canada [2004] SCC 33 — a decision favourably cited by the joint judgment and Gageler J:

Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy.

Not only does logic fail to bind these two aspects of the High Court’s judgment in McCloy, they also carry quite different implications in terms of legislative ability to regulate elections. The High Court’s ruling that political equality and fairness are legitimate legislative objectives permits Parliaments to regulate elections for these purposes; political equality as a constitutional principle, on the other hand, will constrain the ability of Parliaments to regulate elections, even in situations when the purported justification is one of equality and fairness.

This post sounds a cautionary note on the elevation of political equality as a constitutional principle in McCloy. It does so by posing three questions, questions that alert us to the fact that political equality as a constitutional principle does not necessarily result in the realisation of political equality and, in fact, poses risks to the democratic project. Continue reading

McCloy Symposium: Lael Weis on Why Political Communication Isn’t an Individual Right in Australia

By Dr Lael Weis

McCloy Case Page

Much of the commentary about McCloy, the High Court’s recent decision upholding NSW’s ban on donations by property developers, will concern the disagreement among members of the Court about the appropriate method for analysing burdens on the freedom of political communication, and I will look forward to what my colleagues have to say. My own contribution to the blog symposium on this case focuses on a long-standing consensus point: namely, the idea that the freedom is not an ‘individual right’.

Although I imagine members of the public might feel somewhat scandalized if told the right of individuals to communicate political matters is a fake idea in Australia, this is something the Court seems firmly committed to. Each of the four judgments in McCloy affirms this proposition: at [29]–[30] (French CJ, Kiefel, Bell, and Keane JJ); at [119]–[120] (Gageler J); at [219] (Nettle J); at [316]–[319] (Gordon J).

This was also a consensus theme in Unions NSW [2013] HCA 58, the antecedent to McCloy that struck down a wider NSW ban on political contributions by people who are not on the electoral role, such as corporations and unions. In a joint judgment Continue reading