The public interest, representative government and the 'legitimate ends' of restricting political speech

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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 of the unanimity of the 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 the focus of legitimacy testing from an impugned purpose’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 groundwork for 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’.