French CJ
Hayne
J
Crennan J
Kiefel
J
Bell
J
16.
asks 63 whether the provision is reasonably appropriate and adapted, or
proportionate, to serve a legitimate end in a manner which is compatible with the
maintenance of the prescribed system of representative government. The enquiry
whether a statutory provision is proportionate in the means it employs to achieve
its object may involve consideration of whether there are alternative, reasonably
practicable and less restrictive means of doing so 64.
45
It is the defendant's contention that s 96D meets the condition of
proportionality. It submits that the test of proportionality is to be understood as
giving legislatures within the federation "a margin of choice as to how a
legitimate end may be achieved". It has already been observed in these reasons 65
that this view has not garnered the support of a majority of this Court and that the
question has not been the subject of substantial argument. Nor was it in this case.
46
In any event, the point where the question might arise for consideration is
not here reached. Before consideration can be given to the defendant's argument,
it is necessary to address the first enquiry which arises on the second limb of the
Lange test. It concerns the identification of a legitimate statutory purpose for the
provision in question. It is not possible to consider whether the prohibitions
effected by s 96D are a proportionate response until the object which it seeks to
achieve is identified.
47
The identification of the true purpose of a statutory provision which
restricts a constitutionally guaranteed freedom is not often a matter of difficulty.
More commonly, the ultimate question as to the validity of the provision turns
upon whether the provision unreasonably burdens the freedom in the pursuit of
that purpose. The statutory purpose to which the measures are directed is usually
evident. The resolution of the question whether the provision unreasonably
burdens the freedom then falls to be resolved by the enquiries which follow.
48
In the context of the freedom of trade and commerce, to which s 92 of the
Constitution refers, the purposes of the legislative measures in question in
63
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567;
Coleman v Power (2004) 220 CLR 1 at 50 [93], 51 [95]-[96], 78 [196], 82 [211].
64
Monis v The Queen (2013) 87 ALJR 340 at 408 [347]-[348]; 295 ALR 259 at 345346.
65
At [34] above.
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