THE BRENNAN CONCEPTION OF THE IMPLIED FREEDOM:
THEORY, PROPORTIONALITY AND DEFERENCE
DAN MEAGHER*
I INTRODUCTION
The landmark decisions in Nationwide News Pty Ltd v Wills1 and Australian
Capital Television Pty Ltd v Commonwealth2 were delivered by the High Court on
September 30, 1992. The cases found there was a right to engage in political
communication implied from the system of representative and responsible government
established by the Australian Constitution.3 In both cases Commonwealth legislation was
invalidated for offending the implied freedom. The derivation of what amounted to a new
(and implied) constitutional right and its immediate application to strike down
democratically enacted laws was significant and controversial. Significant, as it
demonstrated a judicial willingness (and methodology) to use the Constitution as a
source of new rights and freedoms; an approach that has been refined and deployed by
the High Court to underpin some of its most important decisions of the last 20 years.4
And controversial for precisely the same reasons, namely the view (of some) that the
form of judicial reasoning employed in Nationwide News and ACTV was (and remains)
illegitimate,5 undemocratic,6 ahistorical7 and antithetical to the rule of law by relying
upon (and reasoning from) principles and values external to the Constitution.8
In this article it is not my intention to re-argue the legitimacy (or otherwise) of the
reasoning from which the implied constitutional right to freedom of political
communication was derived.9 For whatever view one takes of these cases the fact
remains that after the unanimous decision of the High Court in Lange10 the implied
freedom is now a permanent fixture in Australia’s constitutional law. However it seems
*
1
2
3
4
5
6
7
8
9
10
School of Law, Deakin University.
(1992) 177 CLR 1 (‘Nationwide News’).
(1992) 177 CLR 106 (‘ACTV’).
I will refer to it as ‘the implied freedom’ for the remainder of the article.
The method (and legitimacy) of deriving implied rights from the constitutional text and
structure was endorsed in Lange v Australian Broadcasting Corporation (1997) 189 CLR
520 (‘Lange’). It has been subsequently applied, for example, to imply a right to (procedural)
due process: Nicholas v The Queen (1998) 193 CLR 173; to imply a limitation on State
legislative power that would undermine the institutional integrity of State Courts: Kable v
Director of Public Prosecutions (NSW) (1996) 189 CLR 51; to imply a limitation on State
legislative power regarding the avenues and availability of judicial review of State
administrative decisions: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR
531.
See Nicholas Aroney, Freedom of Speech in the Constitution (1998) ch 4 & 5.
See James Allan, ‘Implied Rights and Federalism: Inventing Intentions While Ignoring
Them’ (2009) 34 University of Western Australia Law Review 228.
See ACTV (1992) 177 CLR 106, 186 (Dawson J); Theophanous v Herald & Weekly Times
Ltd (1994) 182 CLR 104, 193 (Dawson J).
See Nicholas Aroney, ‘The Implied Rights Revolution – Balancing Means and Ends?’ in H P
Lee and Peter Gerangelos, Constitutional Advancement in a Frozen Continent: Essays in
Honour of George Winterton (2009) 173.
See for example Aroney, above n 5; Andrew Fraser, ‘False Hopes: Implied Rights and
Popular Sovereignty in the Australian Constitution’ (1994) 16 Sydney Law Review 213;
Jeffrey Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply
to Stephen Donaghue (1997) 23 Monash University Law Review 362.
(1997) 189 CLR 520.
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to me both logically sound and good sense that, to the extent necessary to ensure the
effective operation of our constitutionally prescribed system of representative and
responsible government, the freedom to communicate on political matters must be
constitutionally protected as well.
But what was (and remains) problematic – or at least a judicial challenge of some
complexity – is the application of the implied freedom. Specifically, how courts can
assess the compatibility of legislative and executive action with the implied freedom –
and our constitutional system of representative democracy more generally – without
straying (too far) into policy questions for which they will often lack the experience,
expertise and institutional resources to properly answer. For the test laid down in the
implied freedom cases and its application to real controversies is anything but selfexecuting. It poses a series of threshold questions about which reasonable minds (both
political and judicial) will often differ as to the appropriate answer: What is the scope of
political communication?11 When does a law place a burden on that communication?12
And most importantly, when is that burden disproportionate to the attainment of other
legitimate policy objectives?13 These are questions of degree and it is not clear to me that
courts are always terribly well placed to answer them.
In any event, in this article I want to re-visit the judgments of Justice Brennan (as he
then was) in Nationwide News and ACTV. For in my view they articulate a conception of
the implied freedom – and an approach to judicial review in this context – that remains
normatively attractive and, importantly, has much to offer the current High Court as it
continues to flesh out the content of our principles of representative democracy. In order
to do so, I will first outline briefly in Part II how Justice Brennan derived the implied
freedom and why he was correct to use Canada (not the United States) as the relevant
constitutional comparator. Justice Brennan’s conception of proportionality in the context
of the implied freedom will be detailed in Part III. I will then explain in Part IV how his
conception may usefully complement the notion of proportionality that has recently
emerged in Roach14 and Rowe.15 Finally, in Part V, I suggest that in Nationwide News
and ACTV Justice Brennan demonstrated how and why notions of deference have a
legitimate role to play in the context of the implied freedom and judicial (rights)
reasoning more generally.
II JUSTICE BRENNAN’S DERIVATION OF THE IMPLIED FREEDOM
In Nationwide News, Justice Brennan identified sections 7, 24, 64 and 128 of the
Constitution and the common law as the relevant sources from which the implied
11
12
13
14
15
See for example Michael Chesterman, ‘When is a Communication “Political”?’ (2000) 14(2)
Legislative Studies 5; Dan Meagher, ‘What is “Political Communication”? The Rationale
and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne
University Law Review 438.
See Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 221-225 (McHugh
J), 244-249 (Gummow and Hayne JJ) (‘Mulholland’).
For discussions regarding proportionality in the context of the implied freedom see Lange
(1997) 189 CLR 520, 567 (per curiam); Coleman v Power (2004) 220 CLR 1, 30-32
(Gleeson CJ), 48-53 (McHugh J) (‘Coleman’); Mulholland (2004) 220 CLR 181, 196-200
(Gleeson CJ), 266-268 (Kirby J); Roach v Electoral Commissioner (2007) 233 CLR 162,
199-200 (Gummow, Kirby and Crennan JJ) (‘Roach’); Rowe v Electoral Commissioner
(2010) 273 ALR 1, 10-11 (French CJ), 103-115 (Kiefel J) (‘Rowe’).
(2007) 233 CLR 162.
(2010) 273 ALR 1.
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freedom is derived.16 The principles they embody establish Australia’s constitutional
system of representative democracy and the implied freedom facilitates its effective
operation and maintenance.
To sustain a representative democracy embodying the principles prescribed by the
Constitution, freedom of public discussion of political and economic matters is essential;
it would be a parody of democracy to confer on the people a power to choose their
Parliament but to deny the freedom of public discussion from which the people derive
their political judgments.17
It was also significant, in my view, that Justice Brennan in Nationwide News used
pre-Charter Canada as the relevant constitutional comparator.18 For that constitutional
milieu was strikingly similar to Australia’s. Relevantly, a written constitution that
established a federation with parliamentary and responsible government, a common law
system of courts with judicial review and no constitutional or statutory bill of rights. And
importantly, from that similar common law heritage and constitutional design members
of the Canadian Supreme Court had derived (some time earlier) an implied freedom of
political communication.19
It also seemed good sense from a comparative constitutional perspective to draw
upon this Canadian tradition rather than the distinctive and, arguably, fundamentally
different First Amendment tradition of the United States Supreme Court.20 However at
least four judges in Nationwide News and ACTV showed considerable enthusiasm for
American First Amendment cases and their underlying principles.21 For example, the
approach of Mason CJ in ACTV evinced an express distrust of government regulation of
communication.22 This led his honour to adopt the concomitant key First Amendment
principle that any regulation must be sufficiently content and viewpoint neutral to
ordinarily pass constitutional muster.
Generally speaking, it will be extremely difficult to justify restrictions imposed on free
communication which operate by reference to the character of the ideas or information.23
A number of commentators at the time (rightly in my view) criticised the haste with
which core First Amendment principles were imported into the embryonic constitutional
16
17
18
19
20
21
22
23
(1992) 177 CLR 1, 46-47.
Ibid 47.
Ibid 48-50.
Ibid 50; see Re Alberta Statutes [1938] SCR 100; Switzman v Elbling [1957] SCR 285, 328
(Abbott J).
This was an important methodological point that Chief Justice Brennan (as he then was)
returned to and expanded upon in Levy when commenting upon Schenk v Pro Choice
Network of Western New York (1997) 65 LW 4109. Schenk was a case decided by the United
States Supreme Court that dealt with a similar constitutional free speech issue to Levy: ‘The
analogy is attractive unless the different criterion of validity under our Constitution is
steadily kept in mind.’ (1997) 189 CLR 579, 598.
See Nationwide News (1992) 177 CLR 1, 76-77 (Deane and Toohey JJ); ACTV (1992) 177
CLR 106, 143 (Mason CJ), 234-235 (McHugh J).
ACTV (1992) 177 CLR 106, 145.
Ibid 143.
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freedom.24 Adrienne Stone, for example, thought ‘the High Court rather quickly allied
itself with a philosophical tradition based on suspicion of government, a choice which
does not necessarily follow from its identification of the freedom of political
communication with representative government’.25
In any event, after detailing the relevant constitutional parallels between Australia
and Canada and the reasoning that informed the derivation of the right to political speech
in the latter, Brennan J concluded:
By parity of reasoning, the representative democracy ordained by our Constitution carries
with it a comparable freedom for the Australian people and that freedom circumscribes
the legislative powers conferred on the Parliament by the Constitution. No law of the
Commonwealth can restrict the freedom of the Australian people to discuss governments
and political matters unless the law is enacted to fulfil a legitimate purpose and the
restriction is appropriate and adapted to the fulfilment of that purpose.26
This outlines the nature of the implied freedom and, importantly, when and how it
may be limited. And as this passage suggests – and the judgment of Brennan J in ACTV
made express27 – the reasonably appropriate and adapted test or proportionality is used to
assess whether a law that burdens political communication is nevertheless compatible
with the implied freedom.
III THE BRENNAN CONCEPTION OF THE PROPORTIONALITY (AND THE ROLE OF
DEFERENCE) IN THE CONTEXT OF THE IMPLIED FREEDOM
In ACTV, Justice Brennan noted that proportionality is ‘a matter of degree’28 in the
context of the implied freedom. In this regard, as Tom Poole has more trenchantly noted:
Proportionality is plastic and can in principle be applied almost infinitely forcefully or
infinitely cautiously, producing an area of discretionary judgment that can be massively
broad or incredibly narrow – and anything else in between.29
Moreover, the difficulty with proportionality is that judges must not only determine
whether legislation infringes rights but assess whether that infringement is justified in
light of its other legitimate policy aims. The essence of the latter inquiry is an assessment
as to whether the rights infringement is no more than is necessary to achieve the policy
aim(s) of the legislation.30 In this way the core proportionality inquiry requires courts to
review (indeed second-guess) the difficult balance that must be struck in legislation
24
25
26
27
28
29
30
See for example Eric Barendt, ‘Free Speech in Australia: A Comparative Perspective’ (1994)
Sydney Law Review 149, 164-165; Deborah Cass, ‘Through the Looking Glass: The High
Court and the Right to Speech’ in Tom Campbell and Wojciech Sadurski (eds) Freedom of
Communication (1994) 184-191; Tom Campbell, ‘Democracy, Human Rights and Positive
Law’ (1994) Sydney Law Review 195, 206-207; Gerald Rosenberg and John Williams, ‘Do
Not Go Gently into that Good Right: The First Amendment in the High Court of Australia’
(1997) Supreme Court Review 439, 448-456 and 458-464.
Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common
Law’ (1998) 26 Federal Law Review 219, 235.
Nationwide News (1992) 177 CLR 1, 50.
ACTV (1992) 177 CLR 106, 157-158.
Ibid 158.
Thomas Poole, ‘The Reformation of English Administrative Law’ (2009) 68 Cambridge Law
Journal 142, 146.
See Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (2009) 233237.
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between the full range of competing rights and interests that inevitably arise in complex
issues of social policy.
However courts will often lack the institutional resources and expertise to undertake
properly this sort of polycentric decision-making. They do not have the procedures for
meaningful collective deliberation available to Parliaments nor their capacity (both in
terms of time and resources) to conduct inquiries on rights issues and produce
accompanying reports.31
In ACTV, for example, the relevant legislation challenged (and ultimately
invalidated) was passed in response to two Parliamentary Committee reports.32 The
reports contained detailed statistical analysis regarding the explosion in the cost of
financing election campaigns of which the growth in television political advertising was a
major contributor. These developments were considered a serious and ongoing threat to
the integrity of democratic politics in Australia. The reports also canvassed a range of
policy and legislative responses that had been adopted in other jurisdictions, including
the prohibition of television political advertising during election campaigns in the United
Kingdom, France, Norway and Japan amongst others.33 At any rate, these parliamentary
reports emerged from precisely the kind of meaningful collective deliberation that
Parliament (but not the High Court) could undertake on a complex issue of social policy
such as this. And it is a significant reason why ACTV was wrongly decided, in my view.34
The (dissenting) judgment of Justice Brennan in ACTV on the other hand was very
much alive to the significant methodological and separation of powers issues raised by a
proportionality analysis in the context of the implied freedom. It was an issue that he first
considered in Nationwide News:
The balancing of the protection of other interests against the freedom to discuss
governments and political matters is, under our Constitution, a matter for the Parliament
to determine and for the Courts to supervise.35
The role of the court in judicially reviewing a law that is said to curtail the freedom
unduly and thereby to exceed legislative power is essentially supervisory. It declares
whether a balance struck by the Parliament is within or without the range of legitimate
legislative choice.36
Importantly, Brennan J provided a theoretical account of the implied freedom that
in my view is consistent with Australia’s constitutional tradition and design. That
tradition is one of trust (not distrust) of government and, as Sir Edmund Barton noted, the
underlying aim of the Constitution was ‘to enlarge the powers of self-government of the
people of Australia’.37 Relevantly, at the heart of Justice Brennan’s conception of the
31
32
33
34
35
36
37
See Tom Campbell, ‘Human Rights Strategies: An Australian Alternative’ in Tom Campbell,
Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Rights Without a Bill of Rights
(2006) 319; Janet Hiebert, ‘Parliament and Rights’ in Tom Campbell, Jeffrey Goldsworthy
and Adrienne Stone (eds), Protecting Human Rights (2003) 231; Jeremy Waldron,
‘Legislating With Integrity’ (2003) Fordham Law Review 373.
The two reports were: Report by the Senate Select Committee on Political Broadcasts and
Political Disclosures (Canberra: Australian Government Publishing Service, 1993) (‘Senate
Report’); Who Pays the Piper Calls the Tune – Minimising the Risks of Funding Political
Campaigns: Inquiry into the Conduct of the 1987 Federal Election and 1988 Referendums,
Joint Standing Committee on Electoral Matters, Parliament of Australia, June 1989.
Senate Report, above n 32, 123.
See the excellent analysis on this point in Rosenberg and Williams, above n 24, 471-491.
Nationwide News (1992) 177 CLR 1, 50.
Ibid 52 (my emphasis).
Official Report of the National Australasian Convention Debates, Adelaide, 23 March 1897,
17 (Edmund Barton) cited in Lange (1997) 189 CLR 520, 557.
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implied freedom is the view that ‘Parliament chosen by the people – not the courts, not
the Executive Government – bears the chief responsibility for maintaining representative
democracy in the Australian Commonwealth’.38 It also recognises the limited
institutional capacity of courts to determine with any precision what is necessary for the
effective operation of responsible and representative government under the Constitution.
The difficulty is that a question of this nature will often have as much to do with politics
and sociology as the law, as Tom Campbell has observed:
This must be a highly speculative matter of political science and political philosophy
which is very dependent on what particular conception of representative government is
involved and what are the economic realities of effective communication.39
The Brennan conception of the implied freedom is not only normatively attractive
but it informs a theory of judicial review in this context – and so the nature of the
proportionality inquiry to be undertaken – that is worthy of serious (re)consideration.
This is especially so in light of the High Court’s more recent decisions in Roach and
Rowe and the nature of the proportionality analysis that they contained. These cases were
not, strictly speaking, concerned with the implied freedom. At issue was the
compatibility of legislation with the constitutional requirement that Parliament shall be
‘directly chosen by the people’. But in both contexts the Court is assessing whether
legislation undermines our constitutional system of representative democracy and it is
(effectively) the same proportionality test that is applied. The High Court made important
observations as to the nature of this proportionality inquiry in Roach and Rowe, even
though there was disagreement as to the manner in which it was applied. I will consider
these important (recent) developments in Part IV below.
In any event, it was in ACTV that Justice Brennan explained why the following
approach to proportionality was appropriate in the context of the implied freedom:
[T]he implied freedom must be considered in the context of the contemporary and
relevant political conditions in which the impugned law operates. If the content of the
implied freedom of political discussion were ascertainable by reference solely to the
constitutional text, and without reference to the political conditions in which the
impugned law operates, the scope of the freedom would have to be expressed as a mere
matter of form, not as a matter of substance. If it were to be expressed as a mere matter of
form, the Court would be the only forum competent to express it definitively but the
Court could hardly evaluate with any pretence to accuracy the substantive effect of a
freedom thus expressed on the political milieu in which the law is to operate. It follows
that the Court must allow the Parliament what the European Court of Human Rights calls
a ‘margin of appreciation’.40
But to note (if not incorporate) the notion of extending to Parliament a ‘margin of
appreciation’ in the context of the implied freedom is not without difficulty. For it is a
concept with a distinctive European provenance and supra-national purpose as Carolyn
Evans and Simon Evans have pointed out:
[T]he use of the margin by the ECHR is driven by the need to respect the different
conditions in the various members states and is an acknowledgement of the limited
capacity of an international court to fully grasp the total context in which rights decisions
are made in the dozens of states under its supervision. While it overlaps with deference to
the extent that the judges defer their judgment to that of member states, its rationale does
not apply in a single jurisdiction where members of the court could be expected to have a
38
39
40
ACTV (1992) 177 CLR 106, 156.
Campbell, above n 24, 203.
ACTV (1992) 177 CLR 106, 158-159 (footnote omitted).
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good understanding of the society in which they operate. It would thus be inappropriate
for the concept of the margin of appreciation to be transplanted from the European
context into the Australian context.41
This is an important and salutary point, even though it was made in the context of
the limitation provisions in Australian bills of rights and not the implied freedom. Yet in
both contexts it is a proportionality test that is used to assess whether a limitation on a
relevant right is ‘justified’ (under the bill of rights) or ‘compatible’ (with the implied
freedom). And in the former context Evans and Evans suggest that it is more appropriate
in Australia to analyse ‘determinations about proportionality’ in terms of ‘deference
arguments’42 – such as ‘comparative institutional advantage’43 – rather than the ‘margin
of appreciation’. In this regard, for example, deference may be appropriate on policy
issues and ‘in situations where the judiciary knows no better than parliament’.44 Or when
‘the legislature appears to have made an apparently reasonable attempt to “accommodate
competing ‘private’ interests”, and where striking down the law would effect a
redistribution between two or more classes of interest’.45
This approach and these sorts of deference arguments sit well in the context of the
implied freedom, in my view. It focuses the proportionality inquiry on the specific nature
and content of the right to be applied and the capacity of judges – individually and
institutionally – to undertake the analysis required in its application. Even so, it is worth
noting that Brennan J’s use of the European ‘margin of appreciation’ notion was clearly
deliberate and, likely, reflected his view that the supervisory role of the High Court in
this context was equivalent to the role of the European Court of Human Rights in
supervising Convention-compliance of its member states.46 If so, then the use of ‘margin
of appreciation’ – and the institutional analogy with the ECHR in this context – may well
be appropriate.
In any event, it seems clear enough from his judgments in Nationwide News and
ACTV that Brennan J was considering ‘determinations of proportionality’ in terms of
context-specific deference arguments. For example and as noted above, his view that
‘balancing of the protection of other interests against the freedom to discuss governments
and political matters is, under our Constitution, a matter for the Parliament to determine
and for the Courts to supervise’.47 Moreover, the comparative institutional advantage of
Parliament to determine (and maintain) what is necessary for effective representative
democracy was recognised when he said ‘the Court could hardly evaluate with any
pretence to accuracy the substantive effect of a freedom thus expressed on the political
milieu in which the law is to operate’.48
This explains why deference to Parliament in the context of the implied freedom is
both institutionally prudent and constitutionally appropriate. And importantly, by stating
that the relevant judicial inquiry is ‘whether a balance struck by the Parliament is within
or without the range of legitimate legislative choice’,49 Justice Brennan incorporated this
notion of deference into the proportionality test itself. This approach (and test) differs
from the orthodox statement of what proportionality essentially involves. For that, at least
41
42
43
44
45
46
47
48
49
Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian
Charter and ACT Human Rights Act (2008) 186.
Ibid.
Ibid 182.
Ibid.
Ibid 183.
See Nationwide News (1992) 177 CLR 1, 52 where Brennan J expressly notes the
supervisory nature of judicial review in the context of the implied freedom.
Ibid 50.
ACTV (1992) 177 CLR 106, 159.
Nationwide News (1992) 177 CLR 1, 52 (my emphasis).
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formally, turns on a judicial assessment as to whether the rights infringement is no more
than is necessary to achieve the policy aim(s) of the legislation.50 But it should be noted
that even in jurisdictions with bills of rights (in Canada and the UK for example) the
courts do not apply this ‘minimal impairment’ component of the proportionality test with
the sort of strictness that its language would suggest.51 As Aileen Kavanagh has observed
regarding the Human Rights Act 1998 (UK):
The court is not looking for the perfect or ideal balance, but rather attempting to assess
whether the one which has been struck by the primary decision-maker is fair in light of
the importance of Convention rights and the legislative objective sought to be achieved.52
In the next part of the article I will suggest that the High Court should keep in mind
this practical qualification regarding the strictness of the proportionality inquiry as it
seeks, presently, to articulate the proportionality test to be used when assessing the
compatibility of legislation with our constitutional system of representative democracy.
In any event, the manner in which Justice Brennan incorporated deference into the
proportionality test to be applied in the context of the implied freedom is relevant to an
interesting debate that may soon take hold in Australia. And that is the appropriate role
(if any) that notions of deference have in judicial reasoning, especially in the context of
the interpretation and application of human rights instruments. I will consider this
important issue in Part V below.
IV AUSTRALIA’S CONSTITUTIONAL SYSTEM OF REPRESENTATIVE DEMOCRACY AND
PROPORTIONALITY
In the more recent cases of Roach53 and Rowe54 the High Court has invalidated
Commonwealth legislation that was incompatible with the constitutional requirement that
the Australian Parliament be ‘directly chosen by the people’.55 This principle is not the
same as the implied freedom, although they do share a common constitutional
provenance.56 The former is concerned with voting in Commonwealth elections, the latter
with the information needed (and so constitutionally required) in order to do so.
In any event, the ‘reasonably appropriate and adapted’ or ‘proportionality’ test was
used to assess the impugned legislation in both cases. In Roach, for example, the former
was applied to assess whether the legislative disqualification of prisoners from voting in
Commonwealth elections was for a substantial constitutional reason. Relevantly,
Gummow, Kirby and Crennan JJ made the following important observations:
When used here the phrase ‘reasonably appropriate and adapted’ does not mean
‘essential’ or ‘unavoidable’. Rather, as remarked in Lange, in this context there is little
difference between what it conveyed by that phrase and the notion of ‘proportionality’.
What upon close scrutiny is disproportionate or arbitrary may not answer to the
50
51
52
53
54
55
56
See Kavanagh, above n 30, 233-237.
See for example in the Canadian context R v Edwards Books [1986] 2 SCR 713, 781-782
where the Canadian Supreme Courts said that a ‘reasonable limit is one which, having regard
to the principles enunciated in Oakes, it was reasonable for the legislature to impose. The
courts are not called upon to substitute judicial opinions for legislative ones as to the place at
which to draw a precise line.’
See Kavanagh, above n 30, 240.
(2007) 233 CLR 162.
(2010) 273 ALR 1.
Australian Constitution sections 7 &24.
As noted in the text accompanying notes 16-17, the implied freedom is also (to a significant
extent) derived from sections 7 and 24 of the Constitution.
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description reasonably appropriate and adapted for an end consistent or compatible with
observance of the relevant constitutional constraint upon legislative power. The affinity
to what is called the second question in Lange.57
It was held that disqualifying all prisoners – irrespective of the seriousness of their
offence and length of their custodial sentence – was ‘arbitrary’58 and took the legislation
‘beyond what is reasonably appropriate and adapted (or “proportionate”) to the
maintenance of representative government’.59
In Rowe, at least five members of the Court (and interestingly the Commonwealth
as well) accepted the above statement from the joint reasons in Roach as the correct
statement of the proportionality principle in this constitutional context.60 I will call it the
‘Roach conception of proportionality’. On the other hand, whilst Kiefel J extracted the
above statement in her judgment, it was part of a comprehensive (and sometimes difficult
to follow) account of the different variants of proportionality that have been used in
Australian (constitutional) law and in continental Europe.61 But at no stage did she
clearly endorse the ‘Roach conception of proportionality’ in my view. By the same token
it is not clear whether the test she (appeared) to favour and apply is intended to be
something (conceptually) different. In this regard, Kiefel J noted a concern ‘of all tests of
proportionality’.62
Its concern is not just about how the objectives of legislation in question may otherwise
be fulfilled. It is used to determine the limits of legislation which restricts a freedom
guaranteed by the Constitution. When alternative, practicable measures, less restrictive
of a freedom, are available, it may be concluded that the measures in question are not
reasonably necessary. They go too far and are disproportionate.63
Moreover, Kiefel J said that ‘[i]t is not sufficient, for this test of proportionality, that
an alternative legislative measure be identified’.64
The Court must be able to conclude that that alternative measure is just as effective for
the legislative purpose as the measures employed.65
This is, arguably, a more exacting inquiry in form than contemplated by the ‘Roach
conception of proportionality’. As noted above, the latter equated a lack of legal
proportionality with arbitrariness, whereas the former appears closer (at least on its face)
to the ‘minimal impairment’ proportionality inquiry. That is, assessing whether
legislation achieves its objective(s) in a manner that seeks to minimise the infringement
of the relevant right.66 And the analytical waters are muddied further by how the stated
proportionality tests were in fact applied in Rowe. A majority of the Court applied the
(facially less strict) ‘Roach conception of proportionality’ but held the relevant provisions
(regarding the closure of the electoral rolls on the day the election writs are issued) to be
invalid.67 Hayne J applied the same test but thought the law was clearly proportionate to
57
58
59
60
61
62
63
64
65
66
67
Roach (2007) 233 CLR 162, 199 (footnotes omitted).
Ibid 182 (Gleeson CJ).
Ibid 202 (Gummow, Kirby and Crennan JJ).
Rowe (2010) 273 ALR 1, 11 (French CJ), 43 (Gummow and Bell JJ), 48 (Hayne J), 93
(Crennan J).
Ibid 77-85.
Ibid 80.
Ibid (my emphasis).
Ibid 86.
Ibid.
See Kiefel J’s discussion in this regard at ibid 83.
Ibid 26 (French CJ), 45 (Gummow and Bell JJ), 94-95 (Crennan J).
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the legitimate aims of preventing electoral fraud and encouraging those eligible to vote to
enrol in a timely fashion.68 Kiefel J on the other hand engaged in the, arguably, more
exacting proportionality inquiry but also found the provisions to be valid.69
So what are we to make all of this? If nothing else it probably confirms the ‘plastic
nature’ of proportionality.70 In this regard it ‘provides an efficient framework for judging
restrictions and specifying objections’71 but the ‘test itself does not give any guidance as
to, and consequently does not place any restriction on, how judges assign weight to the
competing interests’.72 So we should not be too surprised (or concerned) that reasonable
judicial minds differ as to its nature and scope in any given (rights) context. It is after all
a ‘matter of degree’ as Justice Brennan noted in ACTV.73
However I do want to suggest that in the context of assessing laws said to
undermine our constitutional system of representative democracy, a proportionality test –
stated or applied – that is too strict is fraught with methodological difficulties and ought
to be avoided. For judges will often lack the experience, expertise and institutional
resources to better answer the complex questions of social policy and political science
that will inevitably arise. As the (by then) Chief Justice Brennan was to reiterate in Levy:
Under our Constitution, the courts do not assume the power to determine that some more
limited restriction than that imposed by an impugned law could suffice to achieve a
legitimate purpose. The courts acknowledge the law-makers power to determine the
sufficiency of the means of achieving the legitimate purpose, reserving only a jurisdiction
to determine whether the means adopted could reasonably be considered to be
appropriate and adapted to the fulfilment of the purpose.74
In this regard, I would argue that the manner in which the majority judges applied
the proportionality test in ACTV and Rowe are examples of going beyond – what Justice
Brennan rightly noted is – the ‘essentially supervisory’ nature of the Court’s review role
in these contexts.75 As noted above regarding the analysis and decision in ACTV, I
question the wisdom and legitimacy of the majority in effect substituting the factual and
legislative judgments made by parliament (for their own) as to how political advertising
during election periods should be regulated. The Court was in no better position to
determine this contestable issue of social policy and what the effective maintenance our
constitutional system of representative democracy required in this context.76
On the other hand, in Rowe a majority of the Court considered ‘arbitrary’ legislation
that required the electoral rolls to be closed on the day the elections writs were issued in
order to prevent electoral fraud. In this regard the Commonwealth could not provide
evidence that such a “problem” existed and the legislation served to disenfranchise large
numbers of eligible voters. It led the majority to conclude that the ‘practical operation
goes beyond any advantage in preserving the integrity of the electoral process from a
hazard which so far has not materialised to any significant degree’.77
68
69
70
71
72
73
74
75
76
77
Ibid 68.
Ibid 86-87.
See Poole, above n 29, 146.
Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of
Proportionality’ (1997) 21 Melbourne University Law Review 1, 63?
Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and
the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668,
686.
(1992) 177 CLR 106, 158.
Levy (1997) 189 CLR 579, 598 (footnotes omitted).
Nationwide News (1992) 177 CLR 1, 52.
See Mulholland (2004) 220 CLR 181, 197 (Gleeson CJ).
Rowe (2010) 273 ALR 1, 45 (Gummow and Bell JJ); see also 26 (French CJ), 93-95
(Crennan J).
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But as the minority judges noted, the Commonwealth also argued that the
legislation was designed to prompt eligible voters to enrol in a timely manner and to
prevent electoral fraud. Relevantly, a 2004 report of the Joint Standing Committee on
Electoral Matters recommended the closure of the rolls on the day the election writs are
issued to encourage timely voter registration and noted the possibility of electoral fraud
under the then existing arrangements that gave voters a 7 day grace period. One might
reasonably question whether the legislative measures – so considered – were really
‘arbitrary’ and clearly incompatible with the constitutional mandate that Parliament be
‘directly chosen by the people’.
In any event, the above analysis suggests that the High Court now considers the
‘Roach conception of proportionality’ a correct statement of the principle when assessing
the compatibility of legislation with our constitutional system of representative
democracy. In this constitutional context legislative measures that are ‘arbitrary’ are
disproportionate, but proportionality ‘does not mean “essential” or “unavoidable”’.78 This
is a welcome doctrinal development in my view. It gives us a clear sense of the nature of
the proportionality inquiry and is, arguably, consistent with the (deferential) notion of
extending to Parliament some leeway in determining what is required for (and consistent
with) the effective maintenance of that constitutional system. If so, then I would argue
that it makes good sense to apply the ‘Roach conception of proportionality’ in the
manner which Brennan J originally proposed: the relevant judicial review question, then,
is ‘whether a balance struck by the Parliament is within or without the range of legitimate
legislative choice’.79
Of course the answer to this review question is too a ‘matter of degree’ (upon which
reasonable judicial minds will differ) and will be, inevitably, context-dependent.80 For
that is the nature of a proportionality inquiry, howsoever conceived. But at least the
question so framed serves to concentrate the judicial mind on the fact that under our
Constitution the effective maintenance of representative democracy is the primary
responsibility of Parliament not the courts. And in this context, judicial review ought not
to involve ‘the substitution of the opinions of judges for those of legislators upon
contestable issues of social policy’.81
The upshot, as Justice Brennan noted, is that ‘[i]n a society vigilant of its
democratic rights and privileges [like Australia], it might be expected that the occasions
when the Parliament deliberately steps outside the range of legitimate choice would be
few’.82 And so it has proven to be. Only once since its derivation in 1992 has the implied
freedom been applied to invalidate legislation.83 This should come as no surprise for
these principles (regarding representative democracy) operate to police the constitutional
boundaries, not to invite or require judicial second-guessing of policy questions (and
legislative measures) that they are no better placed to answer.
V THE LEGITIMATE ROLE OF DEFERENCE IN THE CONTEXT OF THE IMPLIED FREEDOM
(AND JUDICIAL REASONING IN RIGHTS CASES)
In the United Kingdom a debate as to appropriate role of deference in judicial
(rights) reasoning has been underway for some time. The catalyst was the Human Rights
78
79
80
81
82
83
Roach (2007) 233 CLR 162, 199 (Gummow, Kirby and Crennan JJ).
Nationwide News (1992) 177 CLR 1, 52.
See Leslie Zines, The High Court and the Constitution (5th ed, 2008) 550-553.
Mulholland (2004) 220 CLR 181, 197 (Gleeson CJ).
Nationwide News (1992) 177 CLR 1, 52.
In fact it was a regulation 7(13) of the Public Service Regulations 1998 (Cth) – Bennett v
President, Human Rights and Equal Opportunity Commission (2004) 204 ALR 119.
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2011
Act 1998 (UK) (‘HRA’). It provided judges with the interpretive tools (and democratic
mandate) to protect human rights vigorously and has triggered developments in the
principles of judicial review more generally.84 And at the heart of the new rights project
in the UK is proportionality, both as the method for assessing rights-limiting legislation
and as an independent ground of judicial review.85 But as noted proportionality provides
judges with significant flexibility in how it is applied in any given context. Indeed, in the
view of one English commentator ‘it is almost certainly the very flexibility of
proportionality that has driven the current academic craze for discussing the notion of
judicial “deference”’.86
It is no surprise, then, that seeking to clarify the appropriate role (if any) of
deference in judicial (rights) reasoning has become such an important issue for the
judiciary and academy in the United Kingdom. The nub of the debate appears to be
whether English public law should develop an independent doctrine of deference or
whether these notions ought to be recognised and subsumed within existing legal rules.87
Significantly, the issue for the most part is not whether deference has a legitimate role in
judicial (rights) reasoning but the legal form it should take. Indeed even Lord Hoffman’s
strident (and well-known) attack on ‘deference’ in the context of judicial reasoning
seemed more about its terminology or rhetoric (specifically ‘its overtones of servility’)
rather than its substance in my view.88 After all, in the same ‘attack’ he concluded by
saying that ‘when a court decides that a decision is within the proper competence of the
legislature or executive, it is not showing deference. It is deciding the law’.89
In the Australian context, however, Justice Hayne in a recent extra-curial paper has
argued that notions of ‘deference’ and ‘margin of appreciation’ ‘are words of obfuscation
… in the sense that they mask an abdication of a constitutionally conferred judicial
function’.90 His Honour is highly suspicious (if not downright hostile) to the place of
deference in Australian judicial reasoning and in rights cases in particular. This stems
from a very clear conception of and commitment to the constitutional separation of
powers: ‘Once a task is validly committed to the courts they must perform that task’.91 In
Justice Hayne’s view ‘[t]hat is reason enough to entertain the most serious doubt about
the utility of the notion of “deference” at least to the extent to which it is advanced as a
constitutional principle’.92
Moreover, these doubts are deepened by his view that ‘deference’ – as a legal
principle – lacks an identifiable content and ‘is used either as a mere solving word or as a
description of what has been done, not why’.93
The point is that notions like deference, margin of appreciation, and relative institutional
competence, can have use only to the extent to which they have identifiable content. If
they do not have identifiable content, they are expressions that serve, in the words of
84
85
86
87
88
89
90
91
92
93
See generally Tom Hickman, Public Law After the Human Rights Act (2010).
See generally Lord Hoffman, ‘The Influence of the European Principle of Proportionality
upon UK Law’ in Evelyn Ellis (ed) The Principle of Proportionality in the Laws of Europe
(1999); Kavanagh, above n 30, Ch 9; Michael Taggart, ‘Proportionality, Deference and
Wednesbury’ (2008) New Zealand Law Review 423; Poole, above n 29; Julian Rivers,
‘Proportionality and the Variable Intensity of Review’ (2006) Cambridge Law Journal 174;
Poole, above n 29, 146.
See generally T R S Allan, Judicial Deference and Judicial Review: Legal Doctrine and
Legal Theory’ (2011) 127 Law Quarterly Review 96.
See R (on the application of ProLife Alliance) v BBC [2004] 1 AC 185, [75]-[76].
Ibid [76].
K M Hayne, ‘Deference – an Australian Perspective’ (2011) Public Law 75.
Ibid 82.
Ibid.
Ibid 84.
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Felix S. Cohen, only ‘to obstruct the path of understanding with the pretense of
knowledge’.94
If Justice Hayne is arguing here against the need – indeed coherence – of elevating
‘deference’ to the status of an independent constitutional principle, then his critique
appears to be similar to Trevor Allan’s most recent word on the matter.95 Allan objects to
a ‘special doctrine of deference … independent of the various standards of review or of
the principles defining the content of specific constitutional rights’.96
[T]he rights of litigants in public law adjudication are genuine moral rights, entitled to
protection in accordance with the criteria that give them legal definition. Insofar as that
protection is weakened by institutional considerations that operate independently, the
judicial process is corrupted and the rule of law denied.97
Justice Hayne shares this concern but appears to go considerably further in his
attack on the efficacy of deference, especially in the context of judicial reasoning in
rights cases.98 Upon a brief survey of some English (rights) cases, his Honour suggested
that ‘[t]he notion of “deference” is being used to paper over the fact that the courts are
unable or unwilling to identify the relevant facts’.99
If Parliament gives the courts a task, the courts have no choice except to perform it. It is
the judicial power, and the judicial duty, which is invoked. If the tools and techniques
available to the courts are inadequate, that is what should be pointed out. There is no
legitimacy, nor fulfilment of the constitutional function bestowed on the judiciary, in a
judicial method which seeks to paper over the deficiencies by invoking the language of
deference. Deference in this sense would be obfuscation of the judicial method. It would
be abdication of the judicial function.100
But is it not possible that judicial deference in this context is not obfuscating
judicial method but recognising its limitations in determining (with precision) the facts
relevant to questions of proportionality that arise in rights cases? The courts are not after
all the primary fact-finders or decision-makers in rights litigation as Aileen Kavanagh has
noted:
[The courts] must bear in mind that they are the secondary, rather than the primary
decision-maker, and as such, owe a degree of deference to the solution adopted by
Parliament. Reviewing for proportionality (however intensively) is still a type of review.
It does not licence the judiciary to retake the primary decision, without any consideration
of how the legislature or Executive or administrative agency made the decision in the
first place.101
That being the case it seems both reasonable and appropriate to accommodate
notions of deference within the legal rules and principles which the courts are duty-bound
to apply in these contexts. This indeed is the conception of judicial deference that Allan
ultimately advocates:
94
95
96
97
98
99
100
101
Ibid 80.
See Allan, above n 87.
Ibid 97 (original emphasis).
Ibid 100 (original emphasis).
Hayne, above n 90, 88-89.
Ibid 88.
Ibid 88-89.
Kavanagh, above n 30, 240.
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University of Queensland Law Journal
2011
The application of principles of law to particular cases entails whatever degree of
deference to political judgment a right, when correctly interpreted, permits in all the
circumstances … When questions of law are closely bound up with matters of fact and
political choice, judicial review secures its legitimacy by avoiding substitution of
judgment …
Considerations of legitimacy are reflected in the proper standards and criteria of judicial
review; and matters of competence and expertise are accommodated within the ordinary
judicial process, wherein general principles of legality are applied to the particular
case.102
In my view, the manner in which Justice Brennan incorporated deference into the
proportionality test that is applied in the context of the implied freedom provides an
example of this approach and why it is constitutionally prudent. To recall, the review
question proposed – ‘whether a balance struck by the Parliament is within or without the
range of legitimate legislative choice’103 – was due to the High Court’s limited
institutional capacity to identify ‘with any pretence to accuracy’ what the implied
freedom requires in most political and legislative contexts.104 Moreover, Brennan J’s
judgment in ACTV demonstrated that incorporating notions of deference into judicial
reasoning (where constitutionally appropriate) is not incompatible with undertaking
detailed and nuanced factual analysis. For example, in order to assess the restrictions on
television political advertising he needed ‘to form some estimate of the effect of the
restrictions … on the flow of information needed or desired by electors to form their
political judgments’.105
[T]he restrictions do not block the flow of information. All news, current affairs and talkback programs are unaffected. The other methods of disseminating political views such
as public meetings, door knocks and the distribution of handbills are unaffected.106
It was open to the Parliament to make a low assessment of the contribution made by
electronic advertising to the formation of political judgments. It was open to the
Parliament to conclude, as the experience of the majority of liberal democracies has
demonstrated, that representative government can survive and flourish without paid
political advertising on the electronic media during election periods.107
This analysis provided the factual foundation for his assessment as to whether the
‘balance struck by the Parliament [was] within or without the range of legitimate
legislative choice’.108 Such an approach does not evince an inability or unwillingness to
identify the relevant facts. On the contrary, it recognises that in rights cases – ‘[w]hen
questions of law are closely bound up with matters of fact and political choice’109 –
incorporating notions of deference into the legal rules to be applied is appropriate and
indeed necessary to fulfil the judicial function. It is an approach to deference in the
context of judicial (rights) reasoning that is consistent with judicial method and both the
principle and spirit of the constitutional separation of powers in Australia.
102
103
104
105
106
107
108
109
Allan, above n87, 97 (original emphasis).
Nationwide News (1992) 177 CLR 1, 52.
ACTV (1992) 177 CLR 106, 158-159 (footnote omitted).
Ibid 160.
Ibid.
Ibid 161.
Nationwide News (1992) 177 CLR 1, 52.
Allan, above n 87, 97.
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VI CONCLUSION
The derivation of an implied constitutional right to freedom of political
communication was a watershed moment in Australian legal history. It confirmed that
representative and responsible government were constitutional principles for which the
High Court, ultimately, had the duty to uphold. But to fulfil that duty in a manner that
continues to recognise (and respect) that Parliament (not the courts) is primarily
responsible for the effective maintenance of our constitutional system of representative
democracy is no easy task. It is one that is further complicated by the kinds of social,
political and even philosophical issues that inevitably arise in these judicial review
contexts.
In this article I have argued that Justice Brennan in Nationwide News and ACTV
outlined a conception of the implied freedom – and constitutional democracy more
generally – that is normatively attractive and constitutionally appropriate. In doing so he
provided a theoretical foundation for an approach to judicial review in this context that in
my view remains valid, relevant and instructive today. Importantly, I think Justice
Brennan’s account has much to offer the present High Court as it works through (and
out) the content of these constitutional principles, the nature of the proportionality inquiry
to be undertaken in their application and the appropriate role of deference in judicial
(rights) reasoning more generally.