Finding the Streams' True Sources: The Implied Freedom of Political Communication and Executive Power

• Author: Joshua Forrester, Lorraine Finlay and Augusto Zimmermann
• Position: PhD Candidate, Murdoch University/Lecturer in Constitutional Law, Murdoch University/Professor, Sheridan College, Perth; Professor of Law (Adjunct), University of Notre Dame Australia, Sydney
• Pages: 188-254

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FINDING THE STREAMS’ TRUE SOURCES:

THE IMPLIED FREEDOM OF POLITICAL

COMMUNICATION AND EXECUTIVE POWER

Joshua Forrester,* Lorraine Finlay† and Augusto Zimmermann‡

In this article, we explore the implied freedom of political communication’s

(‘implied freedom’s’) application to executive power at the Commonwealth, State

and Territory levels. We propose that the proportionality test used by the plurality

in

McCloy v News South Wales

1 be adapted to executive actions affecting the

implied freedom. We then illustrate our proposed approach by applying it to the

case of

Chief of the Defence Force v Gaynor

.2

I INTRODUCTION

Over the past 25 years, the implied freedom of political communication

(‘implied freedom’) has become an established part of Australia’s constitutional

landscape. It is well accepted that the implied freedom limits Commonwealth,

State and Territory legislation. However, its effect on Commonwealth, State

and Territory executive powers is somewhat less clear.

In this article, we examine the current approach to the implied freedom

and executive power. We also propose an approach that, in our view, is more

firmly grounded in the text and structure of the

Commonwealth Constitution

.

We then apply our proposed approach to the topical case of

Chief of the

Defence Force v Gaynor

.3

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* PhD Candidate, Murdoch University.

† Lecturer in Constitutional Law, Murdoch University.

‡ Professor, Sheridan College, Perth; Professor of Law (Adjunct), University of Notre Dame Australia,

Sydney. This contribution to the

University of Western Australia Law Review

stems from the lead

author’s participation at the Executive Power Workshop held on 7 April 2017. The authors would like

to thank the Executive Power Workshop’s organiser, Dr Murray Wesson, for the invitation to

contribute to this special edition. Many thanks also to Trent Mongan and Sarah Howe for their

comments on this article, and to Murdoch University Law Librarian Debra Smith for her assistance

with researching military law. Of course, the views expressed in this article are the authors’ own, as

are any errors contained in it.

1 (2015) 237 CLR 178.

2 [2017] FCAFC 41 (8 March 2017) (

‘Gaynor’

).

3 Ibid.

[2018]

Finding the Streams’ True Sources: The Implied Freedom of

P Political Communication and Executive Power

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189

This article is split into the following parts. In Part II, we cover the

current state of the law concerning the implied freedom, specifically the test

provided by the plurality in

McCloy v New South Wales

.4 In Part III, we note

important points about the implied freedom. The implied freedom is not a

right but a restriction on Commonwealth, State and Territory legislative and

executive power. However, it is also a strong and wide-ranging freedom.

Further, common law freedom of expression is itself of constitutional

importance, and is relevant to assessing proportionality in the

McCloy

test.

In Part IV, we note the current approach to the implied freedom and

executive power, specifically noting the approach in

Wotton v Queensland

.5 In

Part V, we propose another approach to the implied freedom and executive

power. We model this approach on that of the plurality in

McCloy

. We note

here that the sources of executive power differ between the Commonwealth on

the one hand, and the States and Territories on the other. In Part VI, we

consider some issues concerning our proposed approach. These issues include

whether our proposed approach applies to State and Territory executive power,

and to non-statutory executive power. That said, our focus in this article is on

the implied freedom’s effect on the execution of laws and not its effect on non-

statutory executive power. In Part VII, we argue that the High Court’s approach

in

Wotton

does not bar adopting our proposed approach.

In Part VIII, we apply our proposed approach to

Gaynor

. We also

explore issues arising from

Gaynor

, including accommodating the implied

freedom in the Australian Defence Force (‘ADF’) and other government

agencies.

II THE

MCCLOY

TEST

In

McCloy

, the plurality adopted a proportionality test as a tool for determining

whether or not legislation impermissibly infringed the implied freedom.6 This

test was modified in

Brown v Tasmania

,7 and reads as follows:

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4 (2015) 257 CLR 178 (‘

McCloy

’). In this article, we refer to the test that the plurality used in

McCloy

as the ‘

McCloy

test’.

5 (2012) 246 CLR 1 (‘

Wotton

’).

6

McCloy

(2015) 257 CLR 178, 194-5 [2] (French CJ, Kiefel, Bell and Keane JJ).

7

Brown v Tasmania

[2017] HCA 43 (18 October 2017) [104] (Kiefel CJ, Bell and Keane JJ), [277]

(Nettle J) (‘

Brown

’) cf [155]-[156] (Gageler J). Because of her Honour’s views about how to determine

University of Western Australia Law Review

Vol 43(2):188

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190

1. Does the law effectively burden the implied freedom of political

communication in its terms, operation or effect?

2. If ‘yes’ to the first question, is the purpose of the law legitimate, in the

sense that it is compatible with the maintenance of the constitutionally-

prescribed system of representative and responsible government?

3. If ‘yes’ to the second question, is the law reasonably appropriate and

adapted to advance that legitimate object in a manner that is compatible

with the maintenance of the constitutionally-prescribed system of

representative and responsible government?

The third stage of the test requires what the plurality in

McCloy

termed

‘proportionality testing’. A law justifies its burden on the implied freedom if it

is:

•

Suitable

—

there is a rational connection between the provision and its

purpose.

•

Necessary

— in the sense that there is no obvious and compelling

alternative, reasonably practicable means of achieving the same purpose

which has a less restrictive effect on the freedom.

•

Adequate in its balance

— a criterion requiring a value judgment,

consistently with the limits of the judicial function, describing the

balance between the importance of the purpose served by the restrictive

measure and the extent of the restriction it imposes on the freedom.8

It should be noted that other members of the High Court in

McCloy

did not

share the plurality’s approach to proportionality.9 However, the plurality’s

approach is, for now, authoritative concerning whether or not a law is

reasonably appropriate and adapted to its purpose.

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whether or not the implied freedom had been impermissibly infringed, Gordon J did not see the need

to reconsider

McCloy

: see ibid [471]-[482]. In this article, when we mention the ‘

McCloy

test’ it

should be taken to mean ‘the

McCloy

test as modified in

Brown

’.

8

McCloy

(2015) 257 CLR 178 , 195 [2]. It appears that

Brown

did not alter these steps in

‘proportionality testing’.

9 See ibid 236-9 [145]-[152] (Gageler J), 269-70 [254]-[255] (Nettle J), 281-2 [309]-[311] (Gordon J).

It should be noted that, in

Brown

, Nettle J appeared to support proportionality by adopting ap plying

the

McCloy

test: see [2017] HCA 43 (18 October 2017) [236]. Gageler J furthered his Hono ur’s

criticism of the proportionality approach: ibid [158]-[165]. Gordon J applied the same approach her

Honour had applied in

McCloy

, that is, one anchored in the

Lange

test: ibid [312]-[324].