*Please note that the links to the content in this Part will direct you to Westlaw AU.

To purchase an article, please email: [email protected] or contact us on 1300 304 195 (Australian customers) or +61 2 9171 9769 (international customers) during business hours (Mon-Fri, 8am-6pm AEST).

The latest issue of the Public Law Review (Volume 35 Part 3) contains the following material:

COMMENT – Editor: Dan Meagher

SPEECH

Articles

Setting the Playing Field: Vanderstock, Economic Tendencies and the Identification and Definition of Constitutional Facts – Anne Carter and Jayani Nadarajalingam

Although the High Court of Australia has long accepted that issues of constitutional validity may sometimes depend on questions of fact, the relationship between facts and validity deserves closer examination. In this article we focus on the economic tendencies that were relied upon by the High Court in Vanderstock v Victoria in the course of determining whether the Zero and Low Emissions Vehicle (ZLEV) charge imposed by Victoria constituted a duty of excise for the purposes of s 90 of the Constitution. By examining the role played by tendencies in Vanderstock we consider the relationship between facts and validity, suggesting that some facts will be more salient to validity than others. We also consider the extent to which constitutional facts form binding precedent.

Elected Officials and the Bias Rule – Matthew Groves

Politicians are regarded as unreliable and untruthful, largely because their actions do not match their words. There can be good reasons for politicians to change their mind or resile from earlier public statements, such as changed circumstances or a sudden crisis. But there are good reasons why elected officials should honour their prior statements. One is integrity. Public confidence in government will be improved if politicians are seen as likely to honour their word. Requirements of integrity can pull the other way. The bias rule requires decision-makers to approach tasks with an appropriate level of impartiality, but this creates a tension for politicians. The rule requires them to approach issues without strongly preconceived views or prejudgment, yet making statements and promises about future conduct is the lifeblood of politics. This article examines how the courts balance those issues and argues that the bias rule is applied to politicians in a weak manner that offers no real judicial oversight.

Farm Transparency and the Problem of Statutory Purpose in the Implied Freedom Test – Shireen Morris and Sarah Sorial

Academic literature regarding the implied freedom of political communication has tended to focus on proportionality analysis: whether the law is reasonably appropriate and adapted to its legitimate purpose. In this article, we investigate how the High Court determines statutory purpose for the implied freedom test – an aspect under-analysed in the literature. Through examination of the case law, we show that how the High Court determines statutory purpose can be decisive for subsequent proportionality analysis and the ultimate finding of validity or invalidity. It can shift the benchmark against which a law’s suitability, necessity and adequacy in the balance is assessed. However, the High Court’s approach to determining statutory purpose has been at times uncertain and varied, with serious consequences for the implied freedom. We critique the 2022 Farm Transparency decision in light of the case law to distil remaining uncertainties and questions regarding statutory purpose, in the hope of stimulating further research and debate.

DEVELOPMENTS

For the PDF version of the table of contents, click here: New Westlaw Australia – PLR Vol 35 No 3 Contents.

Click here to access this Part on New Westlaw AU

For general queries, please contact: [email protected].