Abstract
In the 2025 cases of Babet, Ravbar and Farmer, the High Court characterised structured proportionality as a ‘tool of analysis’ that need not be applied expressly or ritualistically in every implied freedom of political communication case. Yet the majority stopped short of clarifying the circumstances in which structured proportionality remains applicable, if at all, and declined to definitively endorse a consistent justification test. This article explores the underappreciated practical costs of doctrinal uncertainty for litigants, lawyers and lower courts, underscoring the need for greater methodological clarity in this area.
Keywords
The year 2025 marked a pivotal moment for Australian jurisprudence on the implied freedom of political communication (‘the implied freedom’), with the High Court handing down Babet v Commonwealth; Palmer v Commonwealth (‘Babet’), 1 Ravbar v Commonwealth (‘Ravbar’), 2 and Farmer v Minister for Home Affairs (‘Farmer’). 3 One key development flowing from these cases concerns the justification test. In Babet, confirmed in Ravbar and Farmer, a majority of the Court signalled that the three-part ‘structured proportionality’ framework endorsed in the 2015 decision of McCloy v New South Wales (‘McCloy’) 4 need not be applied in every implied freedom case to assess whether a law that burdens political communication is nonetheless valid as it is ‘reasonably appropriate and adapted’ to a legitimate purpose. However, the majority stopped short of clarifying the circumstances in which structured proportionality remains applicable, if at all, and declined to definitively endorse any alternative framework.
Existing scholarship has largely focused on assessing the strengths and weaknesses of the competing positions in these debates, exploring whether (and how) they might be reconciled, and examining the implications they pose from an institutional legitimacy perspective. 5 This article, by contrast, takes a different approach. It seeks to draw attention to a largely overlooked dimension of the ongoing methodological uncertainty in this area: its practical costs for litigants, lawyers and lower courts. To illustrate those costs, the article analyses three intermediate court decisions handed down in the immediate aftermath of Babet, Ravbar and Farmer – Smith v Blanch (‘Smith’); 6 Lees v New South Wales (‘Lees’); 7 and Jarrett v New South Wales (‘Jarrett’) 8 – which together demonstrate some of the current challenges facing parties and judges seeking to apply the law regarding freedom of political communication. The article concludes by urging the High Court to adopt a clear and consistent justification test.
The Lange test
While the Australian Constitution contains no express right to freedom of expression, since 1992 the High Court has recognised certain implications arising from the system of representative and responsible government prescribed by ss 7 and 24 (which provide that federal parliamentarians shall be ‘directly chosen by the people’ of the states and Commonwealth respectively). In the foundational cases of Australian Capital Television Ltd v Commonwealth 9 and Nationwide News Pty Ltd v Wills, 10 a majority of the Court accepted that freedom of political communication impliedly receives constitutional protection. In order for ‘the people’ to exercise informed voting choices, there must be a free flow of information concerning political and governmental matters. 11
The protection afforded by the implied freedom is not absolute. The test of validity, first established in Lange v Australian Broadcasting Corporation (‘the Lange test’),
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and modified in Coleman v Power,
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McCloy, and Brown v Tasmania,
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is as follows: Does the law effectively burden the implied freedom in its terms, operation or effect? If so, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? If so, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
In McCloy, four Justices endorsed use of a three-part ‘structured proportionality’ framework for assessing whether a law burdening the implied freedom is nonetheless valid – that is, whether it is ‘reasonably appropriate and adapted’ to advancing a legitimate purpose. Under this approach, a court asks whether a law is: (i) suitable (‘having a rational connection to the purpose of the provision’); (ii) necessary (‘there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom’); and (iii) adequate in the balance (‘a value judgment, consistently with the limits of the judicial function, 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’).
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While structured proportionality was applied and endorsed by majorities in later cases, 16 its appropriateness and utility has been subject to sustained debate. Notably, Gageler CJ and Gordon J consistently criticised and declined to adopt this framework. The Chief Justice in particular has instead advocated for a precedent-based ‘calibrated scrutiny’ approach, under which the level of scrutiny applied to an impugned law is ‘calibrated to the degree of risk which the burden imposed by the means chosen poses to the maintenance of representative and responsible government.’ 17
Recent developments: Babet, Ravbar and Farmer
Against the background outlined above, the statements offered in Babet regarding the justification test (that is, the third question of the modified Lange test) are of particular significance. Gageler CJ and Jagot J (writing jointly) expressed the view: Structured proportionality can be a way of organising reasons and explaining the basis on which a conclusion is reached in a particular case as to whether a legislative provision is reasonably appropriate and adapted to advance a legitimate purpose that is consistent with the maintenance of the constitutionally prescribed system of government. The flexible application of all or any of the steps of structured proportionality is to be understood as a ‘tool of analysis’, express or ritual invocation of which is by no means necessary in every case.
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Justices Gordon and Beech-Jones agreed, 19 with Gordon J further stating, ‘I do not consider that it is necessary (or helpful) to apply the three steps of structured proportionality in dealing with the application of the implied freedom.’ 20 In this case, however, the Court unanimously found the implied freedom argument was foreclosed by Mulholland v Australian Electoral Commission, 21 and declined to re-open this case.
The composition of this four-judge majority on the justification test is itself noteworthy. Chief Justice Gageler and Gordon J were joined by the Court’s two most recent appointees, Jagot J (appointed October 2022) and Beech-Jones J (appointed November 2023), whose appointments followed the retirement of prominent proponents of structured proportionality (Kiefel CJ and Bell J). That the decisive majority was completed by the Court’s newest members underscores how changes in the composition of the bench can have significant consequences for constitutional doctrine. 22
The statements about structured proportionality in Babet were arguably made in connection with the plaintiffs’ first argument 23 – what Edelman J described as the ‘explicature’ arising from ss 7 and 24 of the Constitution (an implication concerning the direct impairment of informed electoral choice), as opposed to the ‘implicature’ (the implied freedom of political communication). 24 Nonetheless, their relevance to the implied freedom was confirmed shortly after in Ravbar. Here, in applying the Lange framework, a majority either eschewed use of structured proportionality, 25 or made clear that application of the test in the present case was due to how the parties had framed their submissions. 26
In October 2025, the implied freedom was again at issue in Farmer. The plaintiff, Candace Owens Farmer – a resident of the United States (US) and a far-right political commentator – challenged the validity of s 501(6)(d)(iv) of the Migration Act 1958 (Cth), which provides that an applicant for a visa will ‘not pass the character test’ if there is a risk that the person’s presence in Australia would ‘incite discord in the Australian community or in a segment of that community’. The challenge was unanimously rejected and, in holding that the impugned provision was ‘reasonably appropriate and adapted’ to its protective purpose (and therefore justified), the majority again declined to work through the tripartite structured proportionality test. 27
Writing jointly, Gageler CJ, Gordon and Beech Jones JJ opined that the burden imposed is ‘obvious and not insubstantial’, but also ‘indirect’; and while legally viewpoint-neutral, its practical operation was likely to impact differentially on persons expressing ‘non-mainstream’ political views.
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For their Honours, there was no ‘obvious and compelling, reasonably practicable means of achieving the purpose of s 501(6)(d)(iv) to the same extent which has a less restrictive effect on the freedom.’
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The provision was justified because ‘the nature and extent of the burden on political communication do not outweigh the provision’s legitimate purpose.’
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In separate reasons, Jagot J identified a number of considerations relevant to her Honour’s conclusion that the provision is ‘reasonably necessary to achieve its objective’, namely that it is not directed to the restriction of political communications, is content neutral, has an incidental and consequential effect on one mode of political communication only (in-person communications), and leaves entirely unaffected all other modes of political communication when such modes are known to be available, practical and convenient, …
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‘The worst of all worlds’: The practical costs of doctrinal uncertainty
The majority’s approach to structured proportionality in the above cases was not universally endorsed. Several members of the Court criticised these developments on various grounds, including concerns from a stare decisis perspective 32 and links with foundational questions regarding the constitutional legitimacy of the implication itself. 33 Particularly relevant for the purposes of this article are the detailed criticisms offered by Edelman J in Ravbar highlighting challenges of workability and predictability.
Justice Edelman noted that while the Babet majority suggested structured proportionality is ‘only one of the options in a large suite of alternatives’, no majority view has presently been put forward as to when structured proportionality should be applied and, if it is not applied, which alternative should be deployed in those cases where a judge chooses not to apply structured proportionality.
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For his Honour, this situation is ‘the worst of all worlds.’ 35 In the absence of a clear majority endorsement of a consistent framework, across different cases structured proportionality might be applied in full, in part, or not at all (in which case the implied freedom might be tested by reference simply to the ‘vague formula of “reasonably appropriate and adapted”’, or an alternative approach). 36
Justice Edelman highlights the problems with this situation. First, ‘[c]ases would need to be argued by reference to a number of different tests which might point in different directions.’ 37 Second, the flexibility this seemingly leaves to judges in selecting the appropriate test leaves them ‘open to the criticism that teleological reasoning had been deployed to justify an idiosyncratic policy preference.’ 38 His Honour further cautioned that different formulations of the structured proportionality test might lead to different results. 39
This first concern is particularly salient to this article, which seeks to highlight the practical costs produced by ongoing uncertainty surrounding the applicable justification test. As his Honour notes, such ambiguity risks compelling litigants to prepare submissions addressing multiple potentially applicable analytical frameworks, and to approach cases by arguing in the alternative. Yet in doing so, this significantly increases the financial burden and strategic risks inherent in such litigation. While government defendants may be relatively well-positioned to navigate these complexities, public interest plaintiffs – who frequently bring cases involving political communication – often lack the resources to do so.
Doctrinal indeterminacy also impedes realistic case assessment. The absence of a settled doctrinal test makes it harder for litigants to accurately assess their prospects, exacerbating uncertainty and unpredictability. For some, these compounded challenges may deter them from pursuing potentially valid claims altogether. Such a chilling effect is problematic, particularly given the implied freedom’s crucial role as a structural safeguard for democratic participation.
This uncertainty is equally problematic for lower court judges, who face the challenge of determining which test to apply and when, raising significant difficulties in the consistent and coherent adjudication of cases involving the implied freedom.
Lower court experience
To illustrate these challenges in practice, the article now turns to early intermediate court responses to Babet (reasons published on 14 May 2025), Ravbar (handed down on 18 June 2025), and Farmer (handed down on 15 October 2025). It examines three decisions delivered in the immediate aftermath of these cases – Smith, Lees and Jarrett – to explore how intermediate courts have navigated the currently evolving nature of the justification test.
Smith v Blanch
A case before the New South Wales (NSW) Court of Appeal, Smith was delivered on 15 August 2025. It involved a challenge to provisions of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) that allowed for the making of an apprehended personal violence order (‘APVO’). The applicant had an APVO issued against her after making public comments critical of a transgender football player on various platforms. She argued her statements constituted political communication made in her capacity as an advocate for the organisation ‘Binary Australia’, and the APVO provisions impermissibly burdened the implied freedom.
The Court (Kirk, Stern and McHugh JJA) rejected the applicant’s framing, reiterating the implied freedom is not a personal right and the assessment of whether political communication has been burdened is undertaken at the systemic level. 40 While acknowledging the impugned provisions might incidentally burden political communication in certain instances, the Court characterised this burden as ‘limited and of minor significance’, given it is ‘incidental, content-neutral’; ‘only occurs in cases where an APVO has been found by a court to be warranted and justified’; and is ‘likely to arise in only rare cases’. 41 Further, the provisions pursued the legitimate purpose of ‘protecting people from personal violence as understood to extend to intimidation in the nature of harassment or molestation.’ 42
In relation to the ‘reasonably appropriate and adapted’ inquiry, the Court acknowledged ‘[t]here has been some division in the High Court as to how the third [Lange] question … is to be addressed’, 43 and in recent decisions ‘the position has evolved somewhat.’ 44 Their Honours cited Gordon J in Farm Transparency International v New South Wales (‘Farm Transparency’) 45 (stating that it ‘is not always … necessary or appropriate to undertake all steps of [structured proportionality] analysis’), 46 before setting out Gageler CJ and Jagot J’s statement in Babet. 47 It was noted this view was ‘echoed’ in Ravbar. 48
The Court considered it relevant that case law indicates direct, content-based regulations will be more difficulty to justify compared with incidental, content-neutral burdens. 49 Their Honours further noted Jagot J’s observation in Ravbar that calibration of the degree of scrutiny in this way can be consistent with, and accommodated within, application of a structured proportionality approach. 50
From these statements, the Court distilled that for ‘current purposes’, in answering the third Lange question, ‘[t]he more significant the burden the greater the degree of justification required.’ 51 While ‘it will often be relevant to ask’ the three structured proportionality questions, these issues ‘may have more or less significance in particular cases’ – depending, for example, on the nature of the law and burden imposed, and ‘the salient points focused upon by the parties.’ 52
In Smith, the Court noted the parties had all approached this question by reference to the McCloy three-part structured proportionality test, and none suggested this test was ‘inapposite to the present context.’ 53 Proceeding on this basis, while suitability had been conceded, the applicant’s arguments regarding necessity and adequacy in the balance were rejected as unpersuasive, 54 and the burden was found to be justified.
Because the parties in Smith framed the justification test in the same way, the difficulties that differing approaches would have created did not arise. But this does not resolve the underlying uncertainty about the correct analysis, or ensure the test will be applied consistently in future cases. It remains unclear what courts will do when parties argue by reference to divergent frameworks – for example, relying on only parts of structured proportionality, or instead pressing a calibrated scrutiny approach. More fundamentally, it is problematic if the applicable test shifts with the parties’ framing of the issue. Ad hoc reliance on party submissions risks inconsistent and unpredictable reasoning.
Lees v New South Wales
On 16 October 2025 (one day after Farmer was handed down), Mitchelmore J of the NSW Supreme Court delivered judgment in Lees v New South Wales (‘Lees’). 55 This case concerned a challenge to s 200(5) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’), which permitted police to issue move on directions to persons engaged in public protest ‘occurring in or near a place of worship’. A challenge was brought by Joshua Lees, an organiser of the Palestine Action Group, on the grounds s 200(5) infringed the implied freedom.
Justice Mitchelmore accepted the provision imposed an effective burden: it was directed at protest activity by removing a limitation on police powers in relation to genuine demonstrations, protests, processions or assemblies, all established forms of political communication. 56 Her Honour also found s 200(5) pursued a legitimate purpose: protecting the rights of individuals attending places of worship to express their faith. 57 However, it failed as it was not ‘reasonably appropriate and adapted’ to this purpose, and therefore impermissibly infringed the implied freedom.
Unlike Smith, Lees featured a divergence in how the parties framed their submissions on the justification test post-Babet. The plaintiff submitted the effect of Babet and Ravbar had been to shift ‘the focus of the constitutional inquiry away from proportionality’ 58 and in the direction of a calibrated inquiry favoured by Gageler CJ in previous cases such as Tajjour v New South Wales (‘Tajjour’) 59 and Brown. 60 Noting Gageler CJ and Jagot J had adopted this calibration analysis in Babet, it was submitted ‘this was the lens through which the inquiry should now be undertaken.’ 61 However, the plaintiff also put submissions in the alternative by reference to structured proportionality. Conversely, the defendant did not engage directly with the plaintiff’s approach, and instead relied on structured proportionality alone on the grounds Ravbar did not preclude its continued use as a tool of analysis. 62
In considering the appropriate methodological framework, Mitchelmore J observed: The approach for which the plaintiff contended may be in the ascendency but it is not clear to me, at least from Ravbar, that it has been endorsed by a majority of the Court as the determinative analysis on the third question.
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Her Honour further noted Jagot J’s explanation in Ravbar that structured proportionality ‘is not of itself inconsistent with calibrating the degree of scrutiny to the purpose of the law and the means the law uses to achieve a purpose’. 64
Turning to the present case, Mitchelmore J adopted structured proportionality as the appropriate framework, given the defendant bore the persuasive onus and both parties had made submissions on this basis. 65 Even so, the decision highlights the practical costs of ongoing uncertainty about the ‘correct’ method. As demonstrated by the plaintiff’s approach, parties may feel obliged to argue in the alternative under different tests, increasing complexity and expense. Lower courts, meanwhile, remain without clear guidance on whether the apparent shift towards calibrated scrutiny will crystallise into a consistent, overarching method.
Jarrett v New South Wales
On 16 April 2026, the NSW Court of Appeal handed down Jarrett, a challenge to Minns’ government laws enacted in response to the December 2025 Bondi terrorist attack that restricted public assemblies across large areas of Sydney for a specified period. Significantly, the Court (Bell CJ, Ward P and Free JA) struck down the impugned provisions as invalid. The amendments failed the second stage of the Lange test because their purpose, seek[ing] to preserve social cohesion by discouraging all forms of public assembly across a nominated geographical area and irrespective of the purpose of the public assembly and the actual impact (if any) such an assembly may have on social cohesion
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was not constitutionally legitimate. Further, even if a legitimate purpose had been established, they were not ‘reasonably appropriate and adapted’ due to the ‘sweeping and indiscriminate’ nature of the restriction imposed. 67
Relevantly, the plaintiffs were explicit that their submissions were not framed by reference to structured proportionality,
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and instead emphasised the role of ‘calibration of the degree of scrutiny’.
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The state proceeded on the basis that structured proportionality (when used) involves three steps and addressed each
In Jarrett, because the impugned provisions directly prohibited and restricted political communication (as distinct from laws that effect communications only in a way that is ‘incidental and unrelated to [their] nature as political communications’), the justification required ‘close scrutiny’. 75 This threshold was not satisfied: the restrictions ‘apply disproportionately to all public assemblies, without any mechanism for tailoring the restriction to mass assemblies that are said to have the particular consequence of causing another part of the community to feel threatened in such a way.’ 76 The Court added that this conclusion could be reached ‘without any need to apply a structured proportionality approach’, 77 while observing for ‘completeness’ that the State had ‘failed to demonstrate that the impugned provisions are necessary in the sense that there is no obvious and compelling alternative, or reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom.’ 78
Conclusion
This article has traced the difficulties generated by the absence of a clear, consistent, majority-endorsed approach to the implied freedom’s justification test in the period following Babet, Ravbar and Farmer. These issues include the practical burden on parties to submit arguments in the alternative, and the challenges faced by lower court judges in discerning the appropriate formulation of the test to apply (particularly given the possibility parties may adopt differing approaches). These challenges should not be dismissed or overlooked – they have significant practical consequences for litigants by increasing litigation costs and strategic risks, and leave lower courts and practitioners to navigate a potentially inconsistent and unpredictable terrain. These consequences warrant serious attention.
Jarrett suggests, post-Farmer, that a turn towards calibrated scrutiny is gaining traction. But if calibrated scrutiny is to be the organising principle for the justification test, the High Court should say so expressly, and explain how it relates to (or displaces) structured proportionality. The April 2026 decision in Hopper v Victoria (‘Hopper’),
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a challenge to Victoria’s political donations laws, did not provide that clarification – likely due to the state’s concession that the time limitation burden could not be justified – but does offer insights regarding Edelman J’s apparent shift on structured proportionality in the wake of the 2025 case law. Repeating criticism raised in previous cases regarding the ‘suitability’ and ‘adequate in the balance’ stages of the structured proportionality test,
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his Honour opined: The inutility of the first question and little role for the third, together with the antipathy towards any test based upon structured proportionality now expressed by a majority of this Court [citing Babet and Ravbar], may mean that a test based on structured proportionality should now be treated as dead. That would be a preferable approach to leaving structured proportionality as a mere tool, apparently without even precedential effect, to be deployed in unidentified ways and in unidentified cases
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Notwithstanding this, Edelman J argued that the second question (‘whether the expected burden on free political communication imposed by the impugned law is reasonably capable of being seen as necessary to achieve the legitimate purpose of the law’) should ‘continue to be applied, potentially with further guidance, to reduce the vagueness inherent in general references to “proportionality” or “reasonably appropriate and adapted”.’ 82
As scholars including Adrienne Stone and Rosalind Dixon have argued, and as observations in the case law (including by Jagot J) suggest, one plausible way forward is a hybrid approach, under which application of the tripartite proportionality test is informed (or ‘calibrated’) by more context-specific considerations. 83 While this possibility was acknowledged in both Smith and Lees, clearer and more explicit guidance from a majority of the High Court in this regard is desirable.
If the Court does move towards the precedent-based calibrated scrutiny analysis favoured by Gageler CJ – or alternatively, seeks to explicitly accommodate variable levels of review within a structured proportionality framework – it would also be desirable to articulate, in more concrete terms, the factors that bear on the degree of scrutiny applicable for particular categories of case. It is acknowledged that per the common law approach, this would appropriately be developed over time, on a case-by-case basis, in an incremental manner. Although that project lies beyond the current article’s scope, it is suggested that disciplined comparative engagement with established bodies of free speech jurisprudence – such as US First Amendment doctrine – could offer the High Court valuable ideas and concepts to draw upon in developing clearer, more predictable guidance in this way. 84
The pending challenge before the High Court to the under-16s social media ban presents a timely opportunity for the Court to articulate its approach with greater precision. By settling the methodology of justification and clarifying the role of calibration, the High Court can better equip lower courts and litigants, reduce avoidable complexity and cost, and promote a more coherent and predictable implied freedom jurisprudence.
Footnotes
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.