![handle is hein.journals/monash43 and id is 1 raw text is:
THE PUBLIC INTEREST, REPRESENTATIVE
GOVERNMENT AND THE 'LEGITIMATE ENDS' OF
RESTRICTING POLITICAL SPEECH
SAMUEL J MURRAY*
The question of what constitutes a 'legitimate end' for burdening the
implied freedom of political communication has remained unclear and
divisive for nearly two decades, in spite ofthe unanimity ofthe High Court
in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Until
recently, the test for 'legitimate ends' appeared to require evaluation by
the High Court of the 'public interest' that the impugned legislation was
directed at. However, the ambiguous operation of 'legitimacy testing' has
now been simultaneously clarified and problematised by the High Court
in McCloy v New South Wales (2015) 257 CLR 178. In that case the High
Court switched thefocus of legitimacy testing from an impugnedpurpose's
effect on the 'public interest' to its effect on 'representative government'.
This article examines how the bare majority's judgment in McCloy has
both removed some confusion, but also laid the groundworkfor continued
uncertainty in other respects, and places the landmark decision in the
wider context of legitimacy testing. In particular, questions remain
concerning the continued role of public interest considerations and what
constitutes 'representative and responsible government prescribed by the
Constitution'.
I INTRODUCTION
The constitutional implied freedom of political communication has never been
absolute, and the High Court in Lange v Australian Broadcasting Corporation
('Lange') unanimously agreed that Parliament has the capacity to pass laws that
restrict political communications for certain 'legitimate' legislative purposes.'
However, the lack of an authoritative statement of principle by a majority of
the High Court regarding what constitute such legitimate purposes has caused
ambiguity for the nearly two decades since Lange surrounding the question.
That omission was categorically addressed by the majority of the High Court
* BA (Syd), LLB (Hons I) (Syd). Law Graduate at Corrs Chambers Westgarth; former tipstaff to the
Acting Judges of Appeal of the New South Wales Supreme Court, the Hon Acting Justice Ronald
Sackville AO and the Hon Acting Justice Arthur Emmett AO. The author would like to sincerely
thank Professor Anne Twomey for her role in supervising the research of this article, and for her
thoughtful and invaluable comments on earlier drafts of it, as well as Melissa Chen, Sarah lenna,
Eric Shi, the anonymous reviewers, and especially Nicholas Condylis and Timothy Smartt for their
insightful feedback. All mistakes are mine.
1 (1997) 189 CLR 520, 561; see also McCloy v New South Wales (2015) 257 CLR 178, 193-5 [2] (French
CJ, Kiefel, Bell and Keane JJ), 229 [121] (Gageler J), 280 [305] (Gordon J).](ViewImageLocal?handle=hein.journals/monash43&div=1&collection=&method=preview&ext=.png&size=3)
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