Murphy v Electoral Commissioner [2016] HCA 36 – electoral law, s7 and s28 of the Constitution and the proportionality test

Why this case is important

Murphy v Electoral Commissioner [2016] HCA 36 (Murphy) is an important case for the following reasons:

1.       The High Court clarifies the proportionality test to use in an electoral context when determining whether laws are contrary to s.7 and s.28 of the Constitution; and

2.       The High Court discusses whether the structured approach to proportionality used by the High Court in McCloy v New South Wales [2015] HCA 34 should be extended to Constitutional contexts outside of the implied freedom of political communication.

Murphy also represents the end of the line for challenging current electoral laws in the Commonwealth Electoral Act 1918 (Electoral Act) as the plaintiffs challenged the long existing seven day enrolment and suspension period laws.

Background

The Electoral Act details Australia’s electoral system including how a person can enrol, transfer enrolment, amend an enrolment detail or remove a name from enrolment. A suspension period exists in which time a person’s name must not be added, transferred or removed from the Electoral Roll. The suspension period runs from 8pm on the day the Electoral Rolls close to the close of the poll for the election (suspension period laws).  

When a writ for a federal election is issued, persons who are not enrolled have seven days to lodge their application for enrolment, otherwise they will not be on the Roll for the election and will be unable to vote. Similarly, after the writ is issued, persons who wish to transfer enrolment must do so within seven days if they wish to vote in the division in which they live (seven day enrolment laws). The seven day grace period was introduced into the Electoral Act in 1983 and has existed since then, bar for a short period where the grace period was dramatically shortened (see discussion of Rowe below).

The plaintiffs in Murphy challenged the validity of the suspension period laws and the seven day enrolment laws on the basis they are contrary to sections 7 and 24 of the Constitution. The provisions challenged were sections 94A(4), 95(4), 96(4), 102(4), 103A(5), 103B(5), and 118(5). The plaintiffs argued that the effect of the suspension period laws and the seven day enrolment laws is that persons are disqualified from the popular choice (voting) mandated by the concept of representative government provided for in s.7 and s.24 of the Constitution, and that there is no substantial reason for this disqualification.

Previous High Court challenges to Electoral Act provisions

Roach v Electoral Commissioner (2007) 233 CLR 162

In 2004 the Electoral Act was amended so that prisoners sentenced to imprisonment for three years or more were no longer eligible to vote at federal elections. In 2006 the Electoral Act was amended again, the effect being that all sentenced prisoners were disqualified from voting at federal elections.

The majority judges in Roach (Gleeson CJ, and Gummow, Kirby and Crennan JJ) held, relying on the words “chosen by the people” that the concept of representative government in s.7 and s.24 of the Constitution includes a universal franchise, generally held by all adults. Prior to Roach, it was thought that the words “chosen by the people” referred merely to direct and popular choice. The High Court majority created the following two step approach:

1.       Does the provision effect a disqualification from the entitlement to vote? (More generally: Does the provision inhibit or burden the system of representative government envisaged by s.7 and s.24 of the Constitution that the parliament be “directly chosen by the people”?)

2.       Is there a substantial reason for exclusion in that the means adopted is proportionate to the legitimate ends sought to be achieved?

The majority judges held that the 2006 laws preventing all prisoners from voting were invalid, as sentences imposed for shorter periods were often arbitrary and caused by issues such as homelessness. The laws were not proportionate to a legitimate ends, as the criterion for exclusion was unrelated to the seriousness of the offence.

In contrast, the 2004 laws that disqualified prisoners serving a sentence of three years or more were held to be valid, as removing the right to vote for serious misconduct was a “substantial reason” for exclusion from the franchise, and the criterion for exclusion from the franchise was clearly relatable to the seriousness of offending.

Rowe v Electoral Commissioner (2010) 243 CLR 1

In 2006 parliament amended the Electoral Act so that a claim for enrolment had to be made by 8pm on the day of the issue of the writs to be considered for that election, essentially removing the seven day grace period, and only giving potential voters a matter of hours in which to lodge their application for enrolment after the writ for the election was issued. The Act was also amended so that transfer claims had to be made by 8pm on the day of the closing of the Rolls which was fixed as the third working day after the issue of the writs. The amendments were introduced to create a smoother and more efficient electoral system.

The introduction of the 2006 laws diminished the opportunity for enrolment that existed prior to its enactment, satisfying the first limb of the test in Roach. The High Court then considered whether there was a “substantial reason” for the laws. The majority judges came to the same conclusion using a slightly different approach to the second limb of the test in Roach. French CJ concluded there was not a “substantial reason” as the detriment was disproportionate to the benefits produced from a smoother and more efficient electoral system. Gummow and Bell JJ came to the same conclusion but explicitly used the proportionality approach of the majority in Roach. Crennan J, the final judge forming the majority, interpreted a “substantial reason” as being a law “necessary”, “necessary” not being limited to a law that is essential and unavoidable but also a law which was “reasonably appropriate and adapted to serve a legitimate end”. As the laws were not proportionate to the reasons for the amendments, the High Court majority held the laws invalid.

The outcome in Murphy

The outcome was unanimous (French CJ and Bell J, Kiefel J, Gageler J, Keane J, Nettle J, and Gordon J) in that all judges held the provisions imposing the cut off for enrolment and transfer of enrolment are not repugnant to s7 and s24 of the Constitution. However, the judges differed significantly on how they arrived at this conclusion.

The “substantial reason” test

The second component in the Roach test for validity, is that there be a “substantial reason” for exclusion from the universal franchise. The requirement for a “substantial reason” can be traced back to Brennan CJ’s judgment in McGinty v Western Australia (1996) 186 CLR 140. In Murphy, the High Court confirmed that the proportionality test requires and analysis of whether the law is “reasonably appropriate and adapted”. In the context of s.7 and s.28, the law must be reasonably appropriate and adapted “to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government”. The “reasonably appropriate and adapted” test for proportionality has been used as the test for validity in a number of constitutional and administrative law contexts including to determine the validity of purposive powers, incidental powers, and powers whose exercise limits the enjoyment of a constitutional guarantee, such as the implied freedom of political communication.

High Court judges differ on how to apply the “substantial reason” test

In Murphy, French CJ and Bell J discussed the proportionality criteria set out by the High Court in the case of McCloy v New South Wales [2015] HCA 34, an implied freedom of political communication case. In McCloy French CJ, Kiefel, Bell and Keane JJ adopted the European approach to proportionality in developing a three step approach:

1.       Suitability – whether the law had a rational connection to the purpose of the provision;

2.       Necessity – whether there was an obvious alternative, reasonably practical means of achieving the same purpose with a less restrictive effect on the freedom; and

3.       Adequacy in its balance – whether the extent of the restriction imposed by the impugned law was outweighed by the importance of the purpose it served.

The High Court in McCloy did not discuss the application of the three step approach to proportionality outside the context of the implied freedom of political communication. In Murphy French CJ and Bell J stated that the McCloy three step “structured” proportionality criteria should be used:

1.       To determine the proportionality of laws burdening or infringing a constitutional guarantee, immunity or freedom; and

2.       In the case of laws burdening the representative government envisaged by s.7 and s.24 of the Constitution, the three step test may be relevant depending on the character of the law.

French CJ and Bell J were of the view the “suitability” component of the three step approach should be used to determine proportionality in all situations where determining whether a law, delegated legislative instrument or administrative act is a valid exercise of the relevant grant of power. No other judges supported the use of the McCloy test in the context of s.7 and s.24 of the Constitution.

Gordon J and Gageler J openly opposed the use of the “structured” proportionality approach in the context of s.7 and s.24 of the Constitution. Gordon J questioned whether the structured approach is appropriate at all in the Australian context, given that the judiciary cannot exercise legislative or executive power in Australia’s separation of powers. Gordon J took particular issue with the “necessity” stage of the structured approach, as this stage invites courts to inquire into alternative means of achieving the same purpose, an inquiry which has a legislative flavour to it. Even if it was accepted the structured approach was appropriate in the Australian context, Gordon J reasoned that there is a significant difference between using the structured approach for the implied freedom of political communication in McCloy and the context in Murphy, as parliament is required to enact laws to provide for an electoral system. This positive role of parliament and the broad scope of legislative power in relation to elections “distinctly marks out the present constitutional context from any inquiry about the implied freedom of political communication”.

Gageler J rejected the application of the “structured” proportionality criteria in McCloy, reiterating his reservations about importing such a structured, prescriptive and open ended approach into Australian Constitutional law, referring readers to his dissenting reasons in McCloy. Gageler J was obviously disappointed with the High Court’s continued use of the structured proportionality criteria, writing “what is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own”.

Keane J did not find it necessary to apply the proportionality test, finding no burden on the Constitutional mandate in s.7 and s.24 of the Constitution.

Kiefel J only briefly discussed the utility of the test in McCloy, stating that the alternative to the three step test in determining proportionality is to ask whether the law is “reasonably appropriate and adapted” to their legitimate end. It is not entirely clear from Kiefel J’s analysis which approach Her Honour preferred, however Kiefel J found that the laws were proportionate, as the effect of the suspension period is balanced by the certainty and efficiency achieved by having a suspension period.

Post Murphy how do I apply the proportionality test in the context of s.7 and s.28 of the Constitution?

Is this the case of “one test to rule them all”? Will the “structured” approach to proportionality in McCloy be used for all proportionality tests in the Constitutional context? The answer for now is no. While French CJ and Bell J are obvious supporters of extending the scope of the structured approach to proportionality used in McCloy to other Constitutional contexts, no other High Court judge in Murphy supported this approach. 

As Gordon J put it:

“It should not be assumed that, because a particular test for proportionality has been adopted in one particular constitutional context, it can be uncritically transferred into another context, constitutional or otherwise, even within the same jurisdiction”.

The structured proportionality test in McCloy can safely be applied only in determining whether a law impugns the implied freedom of political communication (see blog post on McCloy for further details). In other Constitutional contexts, the structured proportionality test is not to be used to determine proportionality. In the case of s.7 and s.28 of the Constitution, when applying the second part of the test in Roach, the proportionality test, ask whether the laws are reasonably appropriate and adapted to achieve the identified end.   

Compulsory retirement ages for judges – is it time for a reformulated “proved incapacity” test?

All Australian jurisdictions have compulsory retirement ages for judges. In this blog post I discuss the reasons for and against compulsory retirement and why compulsory retirement may continue to be the best option until a more satisfactory test can be formulated. 

1. The introduction of compulsory retirement ages

New South Wales was the first state to introduce a mandatory retirement age in 1918, with all states having some form of compulsory retirement age by 1944. The Commonwealth was far behind the states in introducing compulsory retirement ages, mainly due to the fact a referendum was required to create any changes to the tenure of judges.

 

Australian High Court and Federal Court judges have been subject to compulsory retirement ages since 1977 when a successful referendum was held and the Constitutional Alternation (Retirement of Judges) Act 1977 was passed to insert the compulsory retirement provisions into the Constitution. Prior to this, federal court judges could only be removed from office for proved incapacity or misconduct.

 

 2. What are the compulsory retirement ages

Commonwealth

High Court judges are appointed for a term “expiring upon his attaining the age of seventy years” (s.72 Commonwealth Constitution). Judges appointed to a court created by Commonwealth parliament are appointed for a term expiring when the judge reaches the age fixed by parliament. The age fixed by parliament cannot be more than 70 years (s.72 Commonwealth Constitution).

 

State

Supreme court judges in state jurisdictions are also required to retire at the age of 70 (except in NSW where the compulsory age of retirement is 72). State constitutions are flexible, so the mandatory retirement age is often found in statute as opposed to the relevant state constitution.

 

Table showing retirement ages across a selection of jurisdictions  

Court	Compulsory retirement age for  judges	Source	Compulsory retirement first introduced
High Court	70 years	s.72 Commonwealth Constitution	1977
Federal Court	70 years	s.72 Commonwealth Constitution	1977
Supreme Court of South Australia	70 years	s.13A Supreme Court Act 1935 (SA). See also s.74 of the Constitution Act 1934 (SA)	1944
Supreme Court of Victoria	70 years	s.77 Constitution Act 1975 (Vic)	1937
Supreme Court of New South Wales	72 years	s.44 Judicial Officers Act 1986 (NSW)	1918
Supreme Court of Queensland	70 years	s.23 Supreme Court of Queensland Act 1991 (Qld)	1921
Supreme Court of Western Australia	70 years	s.3 Judges Retirement Act 1937 (WA)	1937

 

3. Rationale for compulsory retirement

Several reasons were put forward in the 1977 referendum for introducing a compulsory retirement age for High Court and Federal Court judges, with the key reasons being:

1. A need to open up positions for new judicial appointments in order to maintain vigorous and dynamic courts;
2. Community support for compulsory retiring ages for judges; and
3. A need to avoid removing a judge for “proven incapacity” where a judge is unfit for office due to declining physical or mental health.

Of these three reasons, the third is the focus of this blog post. In my view, the first point has an equally valid counterargument being the need for stability in the judiciary and the maintenance of the perception of judicial independence. As judges are appointed on advice of the government of the day, having a high turnover of judges is not ideal for perceptions of judicial independence. There is also the loss of legal excellence in the judiciary that comes with a compulsory retirement age that is set when many judges are just reaching their prime. It is the norm, not the exception for judges retiring due to the compulsory retirement age to continue working in the law full time after finishing working in the judiciary.

4. Example: High Court retirements

If we look at High Court retirements, the first judge to retire on meeting the compulsory 70 years retirement age was Justice McHugh in 2005, with all other previous High Court judges retiring for different reasons prior to reaching 70 years of age.

 

After retiring from the High Court, Justice McHugh continued to work in the law was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. In 2015 he headed the Special Commission of Inquiry into the Greyhound Racing Industry in NSW which led to the decision to ban greyhound racing in NSW from 1 July 2017. Justice McHugh is currently 80 years old and still working. That is 10 years in which Justice McHugh could have remained on the High Court if there was no mandatory retirement age.

 

All retiring High Court judges since Justice McHugh have retired upon or slightly before reaching the compulsory retirement age of 70:

1. Justice Callinan retired from the High Court in 2007 upon reaching the mandatory retirement age and has conducted a number of government inquiries and reviews since including the Commission of Inquiry into the outbreak of equine influenza in Australia in 2008, the review of the Crime and Misconduct Commission in Queensland in 2013, and the review of the effectiveness of NSW’s liquor lock out laws in 2016. Justice Callinan is working hard almost 10 years after he met the High Court’s compulsory retirement age. 
2. Justice Kirby retired from the High Court in February 2009, shortly before he reached the mandatory retirement age and has since continued to work lecturing as an adjunct professor at the University of Tasmania, advising on reform of the Commonwealth of Nations in his role on the Eminent Pearsons Group and supporting various causes including animal rights.
3. Justice Gummow retired from the High Court in 2012 upon reaching the age of 70, and in 2013 recommenced lecturing in equity at the University of Sydney as well as various subjects at the Australian National University. In 2013 Justice Gummow was appointed to the Court of Final Appeal in Hong Kong as a Non-Permanent Justice. Note the trend here of Hong Kong taking advantage of Australia’s senior legal talent made available by the compulsory retirement age.
4. Justice Heydon retired from the High Court in 2013 upon reaching the age of 70 and has worked hard post retirement, heading the Royal Commission into Trade Union Corruption in 2015.
5. Justice Hayne and Justice Crennan retired from the High Court in 2015 upon reaching the age of 70, and have been less active than their colleagues in the legal profession post retirement.

These are just a number of examples from the High Court, but the trend is reflected in other courts. Judges are retiring at the compulsory retirement age, not beforehand, and continue to work in the law or related areas after their retirement.

5. The difficulty of formulating a workable alternative

Judges are judicial office holders, and cannot be removed from their office in the way a normal employee can have their employment terminated by an employer. A judge’s tenure can end in four ways:

1. Resignation;
2. Removal for proved misconduct;
3. Removal for proved incapacity; and
4. Judge meets the compulsory retirement age.

 

Section 72(ii) of the Commonwealth Constitution states that Justices of the High Court and of the other courts created by parliament “shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehavior or incapacity”. State jurisdictions have similar legislative provisions.

 

One of the main reasons compulsory retirement was introduced was to avoid the need to remove a judge for “proved incapacity” when a judge fails to recognize it is time to retire. The process of proving incapacity at common law is arduous and no judge wants to end their career in a battle of psychiatric assessments. If a judge was found to have proved incapacity, the finding could also cast doubt on recent decisions, which could in turn effect confidence in the judiciary. Introducing the blanket retirement age of 70 avoids this problem, but it is also a significant waste of legal resources when judges are forced to retire when at their legal peak.

 

Assuming for now we could like to keep these capable judges in the judiciary, the next question is whether you will keep the compulsory retirement age. Most commentators appear to assume the continuation of some kind of compulsory retirement age with the most popular solution to simply raise the retirement age of judges. A commonly suggested age is 75. However, as the High Court retirees of the past decade show, a lawyer may be fit to work as a High Court judge past the age of 75. My view is that instead of assuming incapacity at a certain age, it may be possible to create a tweaked “proven incapacity” test and process for determining incapacity that does not drag a judge through public disgrace and enables a judge to keep their integrity intact. Looking at the four ways in which a judge can be removed from office, this would involve removing the fourth category and altering the third category to provide more certainty on what would constitute “proved incapacity”.

 

1. Change is unlikely to occur soon

Removing the compulsory age of retirement and inserting a more detailed “proved incapacity” test in the Commonwealth Constitution will require a referendum. Significant community support is required before a referendum will even be considered. If change is to occur it will be at the state level first. However, given the population of judges is small in any given state, there is unlikely to be the public or political desire to make changes to the compulsory retirement age or remove the retirement age and insert a new proved incapacity test. Until the public or parliament become interested in the issue, we will continue to see judges retiring at age 70 while still having so much to contribute to the judiciary, the legal profession and the rule of law.

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370 – Reservist saved by implied freedom of political communication

An Army Reservist of Roman Catholic faith who was terminated due to his highly critical comments made on social media concerning gay members of the ADF, women serving on the front line, and Islam has been saved by the Federal Court who found the ADF’s termination decision was contrary to the implied freedom of political communication in the Constitution. The case sheds light on the extent to which the ADF (or employers by analogy) can control a person’s political expression on social media out of hours. Note that this is not an unfair dismissal case, as members of the Australian Defence Force (ADF) are not employees. Members of the ADF are commissioned, with their commission being governed by the Crown prerogative and regulated by the Defence Act 1903 (Defence Act) and the Defence (Personnel) Regulations 2002 (Personnel Regulations).

Background and facts

Mr Bernard Gaynor served in Afghanistan (2006) and Iraq (2006-7, 2008-9 and 2009) and was awarded the United States of America Meritorious Service Medal in October 2009. In July 2011 he transferred to the Australian Army Reserve. At the time the incidents that led to his termination occurred, Mr Gaynor was a Major in the Army Reserve.

In January 2013, Mr Gaynor launched a webpage, Twitter page and Facebook page to promote his candidature as a Senate Candidate for Katter’s Australian Party for the Federal elections in 2013. On 23^rd January Mr Gaynor tweeted “I wouldn’t let a gay person teach my children and I am not afraid to say it”. Mr Gaynor’s webpage identified him as having served in the Iraq War. On the 24^th January, Mr Gaynor made a press release available along the same lines, that parents should be able to choose if their children are taught by a gay teacher.

On 6 February 2013 Major Gaynor was interviewed and counselled by Lieutenant Colonel Buxton who directed Major Gaynor, using the relevant DI(G), not to make any further intemperate or inflammatory remarks on social media, whether or not on duty or in uniform while he remained a member of the ADF.

Mr Gaynor ignored this direction, and made no attempt to prevent his audience from knowing he was a current ADF Reservist. On 22^nd March 2013 the Deputy Chief of Army sent Mr Gaynor a letter referring to his publications and asking him to stop. Mr Gaynor also ignored the direction contained in this letter.

In March and April 2013 Mr Gaynor published a number of controversial statements on social media including:

1.       A series of press releases, reflecting the material on his webpage, critical of the ADF’s participation in the Mardi Gras, stating that the ADF was accommodating to gay officers and transgender officers but discriminatory against Christian members who make public comment.

2.       Press releases critical of the ADF’s women on the front line policy.

3.       An article on his webpage headed “domestic betrayal a waste of soldiers’ sacrifices” which was openly critical of defence policy in Afghanistan and linked Islam to violence.

4.       A Facebook post which was critical of the ADF’s policies in relation to gay officers, sex-change operations, women serving on the front line, and Islam. The post contained a link to a press release by Mr Gaynor. Both the Facebook post and press release identified Mr Gaynor as a Reservist.

5.       A Facebook post where Mr Gaynor wrote “at what point does the ADF become complicit in child abuse? Should children be exposed to nudity and sexually explicit behaviour at the Mardi Gras?”

6.       A Facebook post critical of ADF personnel participation in Mardi Gras that directly mentioned the Deputy Chief of the Army. The identification of the officer was intended to mock and ridicule the officer. Mr Gaynor also mentioned the Deputy Chief of the Army in a tweet along the same lines.

In May 2013, Mr Gaynor became more aggressive in his strategy and turned specific attention to the transgender officer on the staff of the Chief of Army. His comments were personal and offensive such as “he thinks that because he has had a nip here, a tuck there and popped a bunch of pills that he is now a woman” and “the Army is now the employer of choice for those who want to take their cross- dressing career a little further”.

On 30 May 2013 My Gaynor was served with a Termination Notice issued by Chief of Army who was satisfied the criteria in reg.85(1)(d) and (1A) was established (Termination Notice). My Gaynor responded with a statement of reasons on 27 June 2013.

The decision to terminate Mr Gaynor’s commission was made on 10 December 2013 by the Chief of the Defence Force (Termination Decision). A variety of reasons were given in the termination decision including:

·         being openly critical on social media of ADF and government policy, support offered to gay and transgender members, and the decision to permit women to serve in combat roles;

·         clearly identifying as an active Army Reserve member on many occasions when making comments contrary to ADF policies;

·         behaviour generally acting contrary to policies and cultural change initiatives;

·         conduct repeatedly inconsistent with the DI(G) PERS 50-1;

·         failure to modify online behaviour; and

·         persistence of the conduct.

Mr Gaynor made a Redress of Grievance complaint, and progressed it through all internal avenues before the Chief of Defence Force finally rejected the Redress of Grievance on 30 June 2014.

Mr Gaynor challenged the Termination decision under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) as well as under constitutional grounds (s.116 freedom of religion, and the implied freedom of political communication). He was successful before Justice Buchanan on the implied freedom of political communication argument.

Defence Instructions (General) (DI(G))

The Secretary and Chief of the Defence Force have joint administrative responsibilities in the administration of the Defence Force (s.9A Defence Act). Instructions and policies issued with the authority of the Secretary and the Chief of the Defence Force pursuant to s.9A have statutory effect and are known as Defence Instructions (General) (DI(G)). DI(G)’s relevant to this case include:

·         DI(G) PERS 50-1 issued 18 October 2001 “Equity and Diversity in the Australian Defence Force”;

·         DI(G) ADMIN 08-1 issued 5 October 2007 “Public comment and dissemination of official information by Defence personnel”; and

·         DI(G) ADMIN 08-2 issued 16 January 2013 “Use of social media by Defence personnel”.

Mr Gaynor was required to follow these Defence Instructions.

Mr Gaynor was also required to abide by the Chief of Army Directive CA Directive 15/12 “Army Implementation Plan for Removal of Gender Restrictions” which attempts to improve the Army’s gender diversity and implement an ADF wide plan.

Personnel Regulations

Regulation 85 of the Personnel Regulations lists the reasons for which the service of an officer may be terminated. The list includes at 1(d):

“the Chief of the officer’s Service is satisfied that the retention of the officer is not in the interest of:

(i)                  The Defence Force; or

(ii)                The Chief’s service”

The reasons for which the Chief of the officer’s Service may be satisfied under 1(d) are not limited but include reasons relating to the officer’s behaviour.

Regulation 85(2) permits the Governor-General (or their delegate under reg.85(6)) to issue a termination notice stating the reasons, particulars and facts of termination, inviting the officer to give a statement of reasons and giving a period of at least 28 days for the officer to provide their statement of reasons.

Regulation 85(4) states that the Governor General (or their delegate under reg.85(6)) must issue a termination decision where a statement of reasons has been provided by the officer within the period, and having considered the statement, the Governor General is of the opinion the reason for termination has been established and has not been affected by a change of circumstance since the termination notice was given to the officer. 

In Mr Gaynor’s case, the Chief of the Defence Force and Chief of Army had been delegated the power to issue a termination notice and make a termination decision.

The ADJR Act claim

The ADJR Act claim was brought under s.5 of the ADJR Act. Mr Gaynor attempted to rely on every ground available in s.5(1), which made it difficult for Justice Buchanan to distil the essence of Mr Gaynor’s argument.

However, Justice Buchanan did conduct an analysis of possible grounds, reiterating that reg.85(1)(d) is a satisfaction power. The judiciary cannot rule on whether the satisfaction of a decision maker is appropriate, as this would amount to merits review, not judicial review. Similarly, the judiciary cannot analyse the appropriateness of ADF policies. The DI(G) applied to Mr Gaynor whether or not he was in uniform, as his service obligation was to obey the instructions and orders he was given and respect the disciplined nature of the ADF. The DI(G)’s themselves were not unlawful. There was no evidence showing bias, judgment or predetermination by the Chief of the Defence Force and no substance in any of the challenges to the Termination Decision under the ADJR Act.

The constitutional law claims

Section 116

Section 116 of the Commonwealth Constitution states:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Mr Gayor argued that his posts on social media were protected by s.116 of the Constitution, as his comments amounted to the exercise of his Roman Catholic religion. Justice Buchanan immediately dismissed this argument, as the Termination Decision did not require Mr Gaynor to refrain from the exercise of his religion or satisfy a religious test of any kind. There is limited case law on the point, Justice Buchanan cited Mason ACJ and Brennan J’s test from Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120:

“The area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. Conduct in which a person engages in giving effect to his faith in the supernatural is religious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion”.

Justice Buchanan applied this test to Mr Gaynor’s situation and found s.116 could not be breached, as none of the instructions or orders given to Mr Gaynor or the Termination Decision infringe the test.

Implied freedom of political communication

Justice Buchanan begins his analysis by identifying the two limb test in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange):

Limb 1: Does the law effectively burden the freedom?

Limb 2: Is the object of the law compatible with the constitutional system of representative and responsible government and is the law reasonably appropriate and adapted to achieving that legitimate end?

Justice Buchanan also describes the distillation of the second limb of Lange in McCloy v State of New South Wales [2015] HCA 34 where the majority required proportionality testing in the second limb, requiring an analysis of whether the law is suitable, necessary and adequate in its balance. For a more detailed analysis of the two limbed test, see my blog post on McCloy v State of New South Wales [2015] HCA 34.

Importantly, Justice Buchanan reiterated that the freedom is not a personal right, and in Mr Gaynor’s case, the implied freedom is a suggested limitation on the discretion available under reg.85 of the Personnel Regulations. The first limb required an examination of whether the statements and communications by the applicant were political in nature. Justice Buchanan found that Mr Gaynor’s statements were clearly political in nature, and the fact the statements were offensive did not take them outside the scope of political discourse, even when directed at an individual. The Termination Decision was essentially disciplinary action which was an adverse consequence aimed at preventing further communications.

In considering the second limb, the reasons given in the Termination Notice were analysed. As identified in the facts above, the Termination Notice contained a mix of reasons for termination. The reasons included Mr Gaynor identifying himself as an ADF member while making his comments, but were not confined to this, and included the contention that Mr Gaynor’s public comments and general behaviour and his membership of the ADF as such were incompatible. Justice Buchanan concluded that the main reason behind the decision to terminate Mr Gaynor’s commission was the fact that Mr Gaynor had expressed his views publicly while he was still a member of the ADF.

Mr Gaynor had made the comments in a personal capacity, unconnected to the ADF except by the ongoing formal circumstance of his ADF membership. Justice Buchanan found the second limb of the Lange test was not satisfied. The decision to terminate Mr Gaynor’s commission exceeded the statutory authority under reg.84(4) of the Personnel Regulations because it was not reasonably proportionate and adapted to a legitimate end served by reg.84.

In applying the “suitable, necessary and adequate in its balance” criteria from McCloy, Justice Buchanan considered the question of whether “a regulation which directly prohibited the applicant’s conduct, would be valid if it was based on the same matters as the findings of CDF in the Termination Decision”. Justice Buchanan found such a regulation would not be “adequate in its balance”:

1.       Suitable – there is a need for discipline, obedience to orders and adherence to standards by ADF members, and a restriction on public comment is “suitable”.

2.       Necessary – there is not another obvious and compelling means of achieving the objective in the face of conduct such as Mr Gaynor’s who was defiant and intractable.

3.       Adequate in its balance –Mr Gaynor’s conduct involved the expression of political opinion, effectively as a private citizen. The burden on Mr Gaynor was significant, given the consequences of termination. The right to the freedom cannot be lost merely because of the main reason for termination, being Mr Gaynor remained a member of the ADF. Members of the full time regular services may rarely be free to publicy express opinions against the ADF, but the situation is not the same for Reservists who are often not on duty, and are private citizens when not in duty or uniform. When not in duty or uniform, Reservists should not have their freedom of political communication burdened.

While Justice Buchanan applied the elements of the McCloy distillation of the test, he made it clear his decision would fall the same way if he had applied the second limb of Lange in its traditional sense.

Key lessons

This case is a win for freedom of political communication advocates. It clearly states that the ADF cannot terminate a Reservist for expressing their political views where the political views are expressed when not on duty or in uniform, even where the Reservist makes it clear they are a current ADF member. The ADF case fell down on the “adequate in its balance” component of the second limb of the Lange test. If a decision lesser than termination had been made, this may have been “adequate in its balance”.

Analogies can be drawn from this case to the employment context. While each case will turn on an employee’s type of employment and the applicable policies, an employee’s freedom of political communication will be protected while the employee is acting in a private capacity. The protection may extend to instances where the employee states their connection to their employer, but this would depend on whether the second limb of Lange is satisfied, and in particular, whether the action taken against an employee is “adequate in its balance”. There is no higher authority case law on the application of the implied freedom of political communication to an employment law unfair dismissal context.

Note there is a strong chance this case will be appealed to the Full Court of the Federal Court and eventually the High Court. While it remains to be seen whether leave for appeal will be granted, given the case turned on the application of the “adequate in its balance” component of the test as enunciated in McCloy, and this is a new component of the second limb of Lange, there is a high chance leave will be granted.

McCloy v New South Wales [2015] HCA 34 – implied freedom of political communication – a case summary for law students

There are a number of case summaries that have been written on the High Court’s most recent implied freedom of political communication case, McCloy v New South Wales [2015] HCA 34 (“McCloy”). This case summary is different in that it is designed for law students and junior lawyers and the content is intended to assist in assignments and exams.

Background

Jeff McCloy, the former Lord Mayor of Newcastle and current property developer challenged the validity of several parts of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (EFED Act) on the basis that the laws impermissibly burden the implied freedom of communication of political and government matters. As you are probably aware, McCloy was before ICAC earlier in 2015 regarding political donations made far in excess of the cap. The following parts of the EFED Act were challenged:

1.       Division 2A of Part 6 which creates a general cap of $5,000 (increased annually in line with the equation in Schedule 1)) for political donations to a registered party or candidate for State elections;

2.       Division 4A of Part 6 which prohibits political donations being made by property developers, tobacco industry businesses and liquor and gambling industry businesses ; and

3.       Section 96E which prohibits certain indirect campaign contributions including provision of office accommodation, vehicles, computers and other equipment for no or inadequate consideration for use substantially for election campaign purposes.

New South Wales was joined as defendant by the Commonwealth, Western Australia, Queensland, South Australia and Victoria.

The Lange test – a reminder

A two-step test for determining whether a law is invalid due to the constitutional freedom of political communication was developed in Lange v ABC (1997) 189 CLR 520 (“Lange”)):

Step 1 – Does the law effectively burden political communication in its legal or practical operation?

Step 2 – Is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of representative and responsible government established by the Constitution?

How did McCloy build on the Lange test?

At issue in McCloy was the nature of Step 2 of the Lange test. The majority adopted a proportionality approach which neither Gageler J, Gordon J or Nettle J agreed with.

Lange remains the authority for the test for the constitutional implied freedom. McCloy adds to Lange by clarifying the steps to take when deciding whether the measure is “reasonably appropriate and adapted” to achieve a legitimate end ([70]). In McCloy, the majority refers to this as the “proportionality test” and specifies three elements that must be established before the proportionality test is satisfied – suitable, necessary and adequate in its balance.

What was the outcome in McCloy?

The outcome (6:1 - French CJ, Kiefel, Bell and Keane JJ, Gageler J, and Gordon J : Nettle J) was that none of the EFED Act laws challenged exceeded the implied freedom of political communication derived from ss.7, 24, 64 and 128 of the Constitution. However, while the majority in their joint judgment (French CJ, Kiefel J, Bell J and Keane J) came to this conclusion through the proportionality approach, Gageler J applied Lange in its classic sense and rejected the majority’s proportionality approach, while Gordon J rejected the “balancing” aspect of the majority’s proportionality approach. Nettle J found the laws prohibiting donations from building developers were invalid, as they discriminated particularly against this group, and the justification was not sufficient to warrant this discrimination. Nettle J found it was unnecessary to decide on the proportionality point. The outcome on the proportionality point was 4:3 (French CJ, Kiefel, Bell and Keane JJ : Gageler J, Gordon J and Nettle J).

What you need to know – the three question test from the joint judgment

The joint judgment commences at paragraph 2 by reiterating that the Constitutional implied freedom of political communication is not an absolute freedom, but a qualified freedom that is implied in order to ensure the people of the Commonwealth may “exercise a free and informed choice as electors” (Lange). Relying on Lange as modified in Coleman v Power (2004) 220 CLR 1, and adding a proportionality analysis to the second limb of Lange, the High Court succinctly set out the three questions to answer when determining if a law exceeds the implied freedom of political communication on governmental and political matters. I have converted this information into a flow chart:

*"Compatability test"

The compatability test requires firstly that the following be identified:

1.       The purpose of the law; and

2.       The means adopted to carry out the purpose of the law.

Both (1) and (2) must be “compatible with the constitutionally prescribed system in the sense that they do not adversely upon the functioning of the system of representative government”. The compatability test is a rule derived from the Constitution itself ([68]).

^#“Proportionality test”

The High Court majority added a proportionality test to the second limb of Lange. All three elements must be satisfied before proportionality can be said to exist:

1.       Suitable – “having a rational connection to the purpose of the provision”.

If the measure cannot contribute to the realisation of the statute’s legitimate purpose, it cannot be said to be reasonable ([80]). The majority indicate this is consistent with both Lange and Unions NSW v New South Wales (2013) 252 CLR 530 (“Unions NSW”).

2.       Necessary – “there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on this freedom”.

This inquiry is to whether there is other, equally as effective means of achieving the legislative object which have a less restrictive effect on the freedom. These alternative means must be obvious and compelling. The majority indicate this is consistent with the approach taken in Lange and Unions NSW ([81]).

3.       Adequate in its balance – requires the judge to make a value judgment “describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom”.

The High Court said analysing the balance between the purpose and the extent of the restriction logically inheres in the Lange test, although this is the first time the High Court has “fleshed out” that this requirement is a necessary part of the second limb of the Lange test ([86]). In the balancing aspect of the proportionality test the positive effect of realising the law’s proper purpose must be balanced with the negative effect of limiting the constitutional freedom. The greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate or balanced ([87]).

Applying the test to the provisions of the EFED Act – the joint judgment

Question 1 – does the law effectively burden the freedom?

In Unions NSW a case concerning the operation of Part 6 of the EFED Act, the High Court identified the burden as a restriction on the source of the funds available to political parties to meet the costs of political communication, as even with the public funding provided for in Part 5, a party or candidate will have to fund any shortfall. In McCloy, the majority identified this as the relevant burden. McCloy’s lawyers made an additional submission that the EFED Act prevents donors from making substantial political donations in order to build and assert political power. The High Court rejected this submission, as the ability to make substantial donations is not part of the implied freedom. Guaranteeing the ability of a few to make large political donations goes against the underlying principle of ensuring individuals have an equal share in political power ([28]).

Once the Plaintiff has established the law burdens the freedom, the burden then shifts to the Defendant to justify that burden by answering “Question 2” and “Question 3”.

Question 2 – is the compatibility test satisfied? Is the purpose and means compatible with the system of representative government provided for in the Constitution?

Div 2A Part 6

The purpose of Div 2A was identified as preventing and reducing the amount of corruption and undue influence in the government of the State, as well as to overcome perceptions of corruption and undue influence. The means to achieving this purpose in Div2A is to set a general cap on political donations. Capping political donations is consistent with representative government, as it helps to ensure equality of opportunity to participate in the political process and that one voice does not drown out others ([43] to [47]).

Section 96E

As s.96E is effectively an anti-avoidance provision which attempts to prevent donors getting around the general cap in on political donations in Div 2A, the validity of s.96E depends on that of Div 2A. As Div 2A passes the compatability test, so does s.96E.

Div 4A Part 6

Div4A prohibits property developers from making political donations. McCloy submitted that there is nothing special about property developers that make them more likely to make corrupt payments than other entities ([48]). The High Court accepted New South Wales submission that property developers can be distinguished from other participants due to their dependence on decisions of government in matters such as land zoning and development approvals. The purpose of Div 4A in reducing the risk of undue or corrupt influence in planning decisions where the risk is greater than in other areas of official decision making is legitimate, as are the means adopted to achieve the purpose ([53]).

Question 3 – is the proportionality test satisfied? Is the law suitable, necessary and adapted?

The majority found the proportionality test was satisfied for all the provisions of the EFED Act in dispute. The effect of the laws on the freedom is indirect. The negative effect of reducing funds available to election campaigns and restricting communication by political parties and candidates to the public needs to be balanced with the public interest in removing the risk and perception of corruption. The majority concluded the restriction on the freedom is more than balanced by the benefits sought to be achieved in removing the risk and perception of corruption ([93]).

Gageler J’s judgment

Gageler J dissented from the majority in his characterisation of the second part of the Lange test, rejecting the need for a proportionality test and highlighting two main problems with the majority’s proportionality approach:

1.       One size does not fit all, and the standardised criteria in the proportionality approach will not fit all cases ([142]); and

2.       Requiring a law to be “adequate in its balance” is not sufficiently focused on the reasons for the Constitutional freedom. Equating “strict proportionality with “specific balancing” has always been a controversial approach ([146]).

Gageler J’s formulation of the second stage of the Lange test is that there must be an explanation and a justification. First, the imposition of the restriction on political communication must be explained by the law’s object. Second, the restriction on political communication that is imposed by the law must be justified by the law’s reasonable pursuit of the identified legitimate end.

Nettle J’s judgment

Nettle J neither agreed nor disagreed with the majority’s strict proportionality analysis, as “for present purposes...it is unnecessary to delve into strict proportionality” ([222]). While Nettle J held the donation caps and restrictions on indirect contributions passed the two step Lange test were valid, Nettle J departed from the majority and held the laws prohibiting donations from property developers to be invalid. This was because Div 4A of Part 6 discriminates against a particular segment of the community, requiring strong justification, which was not present ([257]).

Gordon J’s judgment

Gordon J agreed with the majority on the outcome, however decided it was not necessary to limit the way in which a court can be satisfied of the second limb of Lange. Gordon J held that a court may consider whether there are more compelling, reasonably practicable ways of achieving the same end, but this will not always be necessary and there are many ways in which a court could approach the second limb of Lange, and the second limb should not require a set sequence of steps. Gordon Jdirectly rejected that “balancing” is a part of the second limb of Lange “as there are no criteria or rules by which a “balance” can be struck between means and ends” ([336]).