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43 Monash U. L. Rev. 1 (2017)

handle is hein.journals/monash43 and id is 1 raw text is: THE PUBLIC INTEREST, REPRESENTATIVE GOVERNMENT AND THE 'LEGITIMATE ENDS' OF RESTRICTING POLITICAL SPEECH SAMUEL J MURRAY* The question of what constitutes a 'legitimate end' for burdening the implied freedom of political communication has remained unclear and divisive for nearly two decades, in spite ofthe unanimity ofthe High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Until recently, the test for 'legitimate ends' appeared to require evaluation by the High Court of the 'public interest' that the impugned legislation was directed at. However, the ambiguous operation of 'legitimacy testing' has now been simultaneously clarified and problematised by the High Court in McCloy v New South Wales (2015) 257 CLR 178. In that case the High Court switched thefocus of legitimacy testing from an impugnedpurpose's effect on the 'public interest' to its effect on 'representative government'. This article examines how the bare majority's judgment in McCloy has both removed some confusion, but also laid the groundworkfor continued uncertainty in other respects, and places the landmark decision in the wider context of legitimacy testing. In particular, questions remain concerning the continued role of public interest considerations and what constitutes 'representative and responsible government prescribed by the Constitution'. I INTRODUCTION The constitutional implied freedom of political communication has never been absolute, and the High Court in Lange v Australian Broadcasting Corporation ('Lange') unanimously agreed that Parliament has the capacity to pass laws that restrict political communications for certain 'legitimate' legislative purposes.' However, the lack of an authoritative statement of principle by a majority of the High Court regarding what constitute such legitimate purposes has caused ambiguity for the nearly two decades since Lange surrounding the question. That omission was categorically addressed by the majority of the High Court * BA (Syd), LLB (Hons I) (Syd). Law Graduate at Corrs Chambers Westgarth; former tipstaff to the Acting Judges of Appeal of the New South Wales Supreme Court, the Hon Acting Justice Ronald Sackville AO and the Hon Acting Justice Arthur Emmett AO. The author would like to sincerely thank Professor Anne Twomey for her role in supervising the research of this article, and for her thoughtful and invaluable comments on earlier drafts of it, as well as Melissa Chen, Sarah lenna, Eric Shi, the anonymous reviewers, and especially Nicholas Condylis and Timothy Smartt for their insightful feedback. All mistakes are mine. 1 (1997) 189 CLR 520, 561; see also McCloy v New South Wales (2015) 257 CLR 178, 193-5 [2] (French CJ, Kiefel, Bell and Keane JJ), 229 [121] (Gageler J), 280 [305] (Gordon J).