The Factual Questions in Legitimacy Testing - Proportionality and Facts in Constitutional Adjudication book forum
Samuel Murray provides the third and final post in our book forum on Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication. To see all posts, please click here.
Samuel Murray
5.12.2022
Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication is a timely and welcome addition to the perpetually growing commentary concerning the advent of structured proportionality in the High Court’s jurisprudence of the implied freedom of political communication.
As Dr Carter notes throughout the book (pp 5, 88 and 103), a bare majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) in McCloy v New South Wales (2015) 257 CLR 178 (‘McCloy’) dramatically changed the approach to testing proportionality in respect of the implied freedom by adopting a structured, multi-faceted approach to proportionality testing, effectively in lieu of the prior verbal formulation from Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. McCloy is of particular personal significance to me – it was handed down mere weeks before my thesis on the implied freedom was due, and warranted nearly a total rewrite given how extensively it changed the approach to the implied freedom.
McCloy heralded a new wave of both academic commentary and case-law about the merits and application of the new formulation. This book does an excellent job at building out the former and offering guidance for the latter in respect of the use of facts in the new world of implied freedom proportionality testing. From a comparative analysis of similar jurisdictions to exploring the procedural logistics of proving facts in the High Court, Dr Carter offers a welcome insight into the role of facts in each of three of the four stages of proportionality testing identified in McCloy.
I say three of four, because Dr Carter notes that the first step being identification of a ‘legitimate end’ is ‘not dependent on factual claims’ (p 23). Instead, Dr Carter notes that it really comprises identification of a legislative purpose through conventional methods of statutory construction (which is accepted to be an empirical question), and then a ‘normative judgment’ of that purpose which is value laden, rather than factual in nature (p 32). With that analysis, legitimacy testing does not feature extensively in Dr Carter’s work, with her primary focus being on the new threefold components of proportionality testing, suitability, necessity and adequacy in the balance.
Because of that deliberate choice of focus, the only drawback in Dr Carter’s work is that it misses the opportunity to explore the fact specific questions in legitimacy testing and to fill the lacuna of commentary on the issue in the post-McCloy world. That is because whether or not an impugned legislative end is relevantly legitimate (and therefore constitutionally permissible) in certain cases will be informed by implicit factual premises about the practical operation of, and the key actors within, the Australian political process.
McCloy and legitimate purposes
Part of the issue in this respect is Dr Carter’s assumption that legitimacy testing is necessarily ‘normative’ in nature, with the unstated premise that there is no room for factual considerations. As noted by Dr Carter, in McCloy, the majority of the High Court clarified previously unclear law on what constituted a ‘legitimate purpose’ (p 104) in clearly stating that a purpose will be legitimate where it is compatible with the system of representative and responsible government prescribed by the Constitution (French CJ, Kiefel, Bell and Keane JJ at [2], [31]; see also Gageler J at [130], Gordon J at [320], [349] and [374]). In terms of what that means, the majority explained in McCloy that a purpose will be incompatible (and therefore illegitimate) where it ‘adversely impinges’ on that system of representative and responsible government (at [2]).
That represented a conclusive shift (like much of McCloy) from earlier implied freedom caselaw that suggested that legitimacy testing involved some sort of ‘public interest’ analysis (see Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, Cunliffe v Commonwealth (1994) 182 CLR 272). No more. Instead, the sole determinant of legitimacy is the connection and effect of the purpose on representative and responsible government.
While elements of this analysis are necessarily legal and value-centric (primarily as to what comprises the components of the system of representative and responsible government prescribed by the Constitution), there are factual queries that are buried deep in such a question. There is utility in identifying these queries (in the same manner in which Dr Carter has artfully done for the balance of the McCloy proportionality test).
'Enhancing’ or ‘impinging upon’ representative and responsible government?
Pursuant to the new McCloy test, it is plain that in some cases, legitimacy testing will only be the preserve of value judgments. For example, determining that a given purpose does not have any connection to representative and responsible government (and is therefore definitionally compatible and legitimate) only requires identification of the statutory purpose through conventional methods of construction (as acknowledged by Dr Carter), and a legal assessment of the components of representative and responsible government.
The difficulty arises where the statutory purpose is clearly directed at the operation of representative and responsible government, and the question shifts to whether the purpose is directed at enhancing representative and responsible government it (which was the case in McCloy, where the majority noted at [5] that the impugned purpose not only did not impede but enhanced the systems of representative government) or directed at impinging upon it.
In some cases, the answer will be self-explanatory: the example that Gageler J gave in Tajjour v New South Wales (2014) 254 CLR 508 – that the purpose of ‘quelling a political controversy or of handicapping political opposition’ is self-evidently incompatible – comes to mind (at [148]). But there will be cases where an assessment of legitimacy draws on a mixed factual and normative analysis. That is particularly pertinent given the centrality of the free choice of electors in an election to representative and responsible government as prescribed by the Australian constitution. Whether or not a given legislative purpose is directed at enhancing or restricting that choice (and therefore enhancing or impinging upon representative and responsible government) will necessarily proceed on certain factual premises about how electors make their decisions in the ballot box, and how political processes and factors affect their decision making.
For example, in Brown v Tasmania (2017) 261 CLR 328, the impugned legislation imposed restrictions on protestors for the purported end of protecting businesses against disruption, including by preventing, impeding, hindering or obstructing the carrying out of lawful business activities on business premises by protestors. It is interesting to contrast the views of Gageler and Nettle JJ on whether that purpose was legitimate. Justice Gageler concluded that insofar as such a purpose was directed at constraining the conduct of protestors as protestors, that purpose (as distinct from merely being a means to an end) could not be legitimate (at [210]). However, Nettle J took the opposite view and concluded that the purpose of ‘ensuring that protesters do not substantively prevent, impede or obstruct the carrying out of business activities on business premises and do not damage business premises or business-related objects is a purpose compatible with the system of representative and responsible government’ (at [275]). By that, Nettle J, insofar as his Honour was applying the McCloy test for compatibility testing, presumably meant that such a purpose – of protecting businesses from disruptive activities of protestors – does not adversely impinge upon representative and responsible government.
While these two divergent approaches apparently indicate a difference in views about the content of representative and responsible government (that is, to what extent disruptive protest itself forms part of representative and responsible government), there is a disguised factual question in the query: to what extent does disruptive protest meaningfully effect political speech such that it affects the free choices by electors?
If disruptive protest, as a matter of empirical reality, plays no meaningful role in the choice of electors, then Nettle J’s conclusion that ‘[t]he implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it’ is determinative (at [275]). That suggests that his Honour was focused on the concept of political protest as being speech directed at the person the subject of the protest.
But if disruptive protest does in fact very substantially alter political choices of electors other than the target of the protest – for example, by drawing significant third-party interest through media attention to a particular perceived political issue or injustice – then Nettle J’s conclusion that restricting disruptive protest does not impinge upon representative and responsible government becomes harder to defend. Historical experience of the sit-ins during the American civil rights movement or, in the Australian context, the protest outside the segregated Moree swimming pool during the 1965 Freedom Rides, suggests that there is some role for disruptive (but non-violent) protest in communicating political ideas to mass audiences, but the extent to which that has more than a nominal effect on the choices of electors is ultimate a question of fact.
More recently, Edelman J in Unions NSW v New South Wales (2019) 264 CLR 595 took the rare step of finding that the given legislative end of purposefully ‘quietening’ the political speech of third party campaigners relative to political parties was in fact illegitimate (at [222]). (This is rare, because the High Court has seldom found that a legislative end is illegitimate, instead preferring to find that the means are not proportionate to a legitimate end.) There is an implicit appreciation in his Honour’s conclusion of the role that third party campaigners, such as unions, corporations or non-government organisations – that are unmentioned in the text of the Constitution, play as a matter of fact in the Australian political ecosystem.
That is not to say that facts will be in dispute in every instance of legitimacy testing. As noted above, in many cases the legitimacy of the purpose (that is, its compatibility with representative and responsible government) goes without saying. Nonetheless, as with the other limbs of proportionality testing examined extensively by Dr Carter, the spectre of facts looms large over the legitimacy of legislative ends as a consequence of the long shadow of McCloy.
To that end, we are all indebted to Dr Carter for her thoughtful examination of the substance and procedure of such fact-finding in her wonderful new book.
—
Samuel Murray is a barrister at Eleven Wentworth Chambers in Sydney.
Suggested citation: Samuel Murray, ‘The Factual Questions in Legitimacy Testing - Proportionality and Facts in Constitutional Adjudication book forum’ on AUSPUBLAW (5 December 2022) <https://auspublaw.org/blog/2022/12/the-factual-questions-in-legitimacy-testing-proportionality-and-facts-in-constitutional-adjudication-book-forum>