Keane
J
36.
to confine its operation to State and local government elections preserve its
proscriptive effect, notwithstanding the freedom of political communication
within the federation. This second issue will be referred to as the "quarantine
question".
114
As to the first of these issues, the decision of this Court in Lange100
established the framework for analysis of whether a law of the Commonwealth, a
State or a Territory is invalid as impermissibly trenching upon the freedom of
communication derived from ss 7, 24, 64 and 128 of the Constitution. This
framework was modified in Coleman v Power 101; but it remains convenient to
refer to it as "the Lange test". It was most recently accepted as authoritative in
the decisions of this Court in Hogan v Hinch 102, Wotton v Queensland 103 and
Monis 104. In the present case, no party or intervener sought to call into question
the authority of the Lange test.
A law will be invalid under the Lange test if:
115
116
(a)
the law effectively burdens freedom of communication about government
or political matters either in its terms, operation or effect, and
(b)
it is not reasonably appropriate and adapted to serve a legitimate end the
fulfilment of which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible
government and the procedure prescribed by s 128 for submitting a
proposed amendment of the Constitution to the informed decision of the
people.
The arguments of the parties in relation to each limb may conveniently be
summarised and considered in turn.
An effective burden?
117
The plaintiffs submitted that s 96D effectively burdens political
communication by limiting the sources of funds otherwise available to political
100 (1997) 189 CLR 520 at 567-568.
101 (2004) 220 CLR 1 at 51 [95]-[96], 78 [196], 82 [211]; [2004] HCA 39.
102 (2011) 243 CLR 506 at 542-543 [47], 554 [92]; [2011] HCA 4.
103 (2012) 246 CLR 1 at 15 [25]; [2012] HCA 2.
104 (2013) 87 ALJR 340 at 360 [61], 366-367 [102]-[106], 387-388 [236], 396 [276];
295 ALR 259 at 279, 288-289, 318, 329.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents