Henry Palmerlee

Justice Gageler’s dissenting judgement in the recent case of Farm Transparency International Ltd v New South Wales [2022] HCA 23 includes an insightful explanation of why video-based political communication has attracted consistent judicial interest. His Honour argued that two unique characteristics of visual imagery – its persuasiveness and inherent veracity – make it a potent medium for political communication in the modern age.

In this piece, I consider Gageler J’s reasoning in the context of recent advances in video manipulation through artificial intelligence, specifically deepfakes.

Anne Carter

I am honoured and humbled to have such an eminent panel engage with my book, Proportionality and Facts in Constitutional Adjudication. As I will explain below, the motivations for this book stemmed in part from my time as a practising government lawyer, so I’m particularly delighted that this book forum includes two practitioners of public law, along with a leading comparative constitutional law scholar. Each panellist has engaged thoughtfully with the substance of the book and has raised a number of distinct issues. In this post I will explain the motivations behind the book and its main themes and findings, as well as responding to the helpful contributions from the three panellists. In doing so I will sketch some future directions about the ongoing conversation about facts in proportionality reasoning (and public law more generally).

Samuel Murray

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 , a bare majority of the High Court in McCloy v New South Wales (2015) 257 CLR 178 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. 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.

Mike Wait

Dr Anne Carter’s new book, Proportionality and Facts in Constitutional Adjudication, makes a substantial and timely contribution to our understanding of a range of issues emerging in the burgeoning field of proportionality litigation. The focus of the book is on sources of evidence, burdens of proof and aspects of procedure. However, the book’s real strength is that it locates what are ultimately practical litigious issues within a sophisticated account of the evolution of the implied freedom of political communication in Australia and an appreciation of comparative approaches drawn from jurisdictions which have long wrestled with these issues.

Rosalind Dixon

Proportionality analysis is ultimately deeply fact dependent. It depends on an assessment of the suitability of laws for achieving their purposes – a question of basic logic and social fact. It further requires an assessment of whether a law is necessary, or could achieve its objective through some hypothetical, less restrictive alternative, and is 'adequate in the balance', namely achieves greater benefits than costs, from a constitutional perspective.

Anne Carter notes in her important new book that these are all arguably 'legislative' rather than 'adjudicative' facts, but also distinct in nature and scope. As the High Court has indicated, each calls for different sources of evidence, and procedures and rules governing their use. Yet to date, the constitutional law-fact nexus has attracted only limited attention in Australia. Carter’s book therefore makes an important contribution to the literature on this question. It provides a nuanced survey of the procedural challenges and complexities facing the High Court in this context, and offers tentative, well-reasoned potential solutions, informed by comparative experience.

Anthony Gray

The highly emotive subject of animal cruelty, and the legality of attempts to bring its possible existence to the attention of the public, was considered in a recent High Court decision. Anti-cruelty activists challenged the validity of a surveillance law that could be applied to their activities. The High Court dismissed the activists’ challenge, but in so doing, significant differences on key issues were apparent. The case also demonstrates that for a constitutional challenge to legislation based on the implied freedom of political communication, the requirements of proportionality, as applied by the current High Court, can present very high, if not virtually insurmountable, hurdles to overcome.

Kieran Pender

A federal election is imminent. Following the Mediscare scandal of 2016 and the death tax saga of 2019, it is perhaps only a matter of time before a major mis- or dis-information campaign hits the 2022 election. Attention will inevitably turn to a regulatory response. One frequently-cited proposal is a truth in political advertising law, which would penalise false or misleading political advertising. Such laws currently exist in South Australia and the Australian Capital Territory. Last year, independent MP Zali Steggall proposed a federal equivalent via a private member’s Bill.

Dane Luo

Following a ‘march of structured proportionality’ globally, the High Court adopted, in the 2015 McCloy v New South Wales (2015) decision, the framework of ‘suitability’, ‘necessity’ and ‘adequacy in the balance’ to a legitimate end to assess the proportionality of laws that burden the implied freedom of political communication (implied freedom).

Graeme Orr

In late 2021, the Australian government enacted various amendments affecting the registration of political parties, with the support of the Labor opposition. The oddest, if not most contentious, aspect of the reforms is a rule allowing established parties to effectively “bags” key words in their names. Words such as ‘liberal’, ‘labo(u)r’, ‘greens’ – even ‘Christian’ – and grammatical variants are now controlled by the oldest registered party with that word in its name. (Certain words, such as ‘democratic’ or ‘country’, place names like ‘Australia’ and ‘collective nouns for people’ are not so controlled.)

Josh Gibson

On 16 June 2021, the High Court delivered its judgment in LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (LibertyWorks v Commonwealth). The case centred on the Foreign Influence Transparency Scheme Act 2018 (FITS Act), a legislative scheme introduced to expose foreign influence effected by foreign principals within Australia. In …