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43 Monash U. L. Rev. 1 (2017)

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).

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