The implied freedom of political communication guards the ground rules of democratic choice. It deserves a stable method, not a roll of the dice, writes Jacob Cuttle.
One court, one test
Australia’s High Court has splintered on how to decide when the implied freedom of political communication applies. Recently, in Ravbar v Commonwealth (2025) (‘Ravbar’), the justices agreed on the result but disagreed on the method. Some justices now treat the prior test of structured proportionality as optional, while others insist it remains the standard. The result is confusion for courts, Parliament, and citizens.
The High Court of Australia should reunite around a single, structured proportionality test for the implied freedom of political communication, as set out in McCloy v New South Wales (‘McCloy’).
Losing the doctrinal map
For two decades after the implied freedom’s inception, the High Court’s test for its application remained broad and unguided. In 1997, Lange’s original two-limb test asked, “Does the law effectively burden freedom of communication about government or political matters?” and if so, “Is the law reasonably and appropriately adapted to serve a legitimate end [in a manner] compatible with … representative and responsible government?” While sound in theory, the vagueness of “reasonably appropriate and adapted” leaves too much to judicial discretion, with differing judges commonly reaching opposite conclusions about the same law.
From 2013, the court moved towards framing “proportionality” (synonymous with “reasonably appropriate and adapted”) with suitability, necessity, and adequacy in balance. In Monis v The Queen (‘Monis’), Hayne J flagged judgment “may be assisted by adopting the … tripartite analysis that has found favour in other legal systems”. Two years later, the High Court majority in McCloy explicitly imported this analysis, naming it the Structured Proportionality Test (SPT). They grafted the three proportionality stages of suitability, necessity, and adequacy in balance onto Lange’s once ambiguous term of “reasonably appropriate and adapted”. The system flourished, as judges could now all apply the same structured method to their decisions, allowing Parliament to formulate legislation in line with a settled High Court constitutional test.
Subsequent cases reaffirmed the superiority of the structured proportionality approach. In Brown v Tasmania (‘Brown’), a majority again applied the McCloy proportionality stages. Moreover, in Clubb v Edwards (‘Clubb’), the joint judgment of Kiefel CJ, Bell and Keane JJ also set out McCloy’s SPT to determine the law’s validity. Notably, even in Clubb, some justices voiced reservations about aspects of proportionality. Justice Gageler worried about courts weighing in on “adequacy in balance”, however, the court rightly remained aligned on using the structured framework as the appropriate analytic tool. By the end of the 2010s, the SPT had been applied “again, and again … over the last decade” in implied freedom cases, seemingly settling into the fabric of the doctrine as orthodox precedent.
Babet v Commonwealth of Australia (2025) (‘Babet’) unsettled that clarity, with Ravbar elucidating its pitfall. The majority in Babet found that the SPT, which had enjoyed the support from the majority of the HCA for over 10 years, was now only an optional “tool of analysis … [and not] necessary in every case”. Following this decision, when the implied right came into question again, Ravbar delivered seven separate judgments and fractured on the method. Some justices downplayed the need to use the SPT at all, preferring the imprecise and vague Lange language of “reasonably appropriate and adapted”; whereas others defended the approach as the settled way. Justice Edelman dramatically claimed this was the “worst of all worlds”: on Monday, the full test applies; by Wednesday, it does not; by Thursday, different judges use different variants. Without structured proportionality, justification slides back into opaque “reasonableness”, and the scope of the implied freedom becomes unpredictable.
Adopting Hart’s legal theory
I will rely on Hart’s jurisprudence to answer why a uniform SPT is needed. Hart’s theory posits that a functioning legal system is a union of primary rules (laws and rules that impose duties) and secondary rules (relating how primary rules are recognised, changed, and adjudicated): The rules of recognition state the criteria of legal validity accepted by official; the rules of change allocate authority and procedure for making, amending or repealing rules; the rules of adjudication identify the institutions and processes for authoritatively determining disputes and whether a primary rule has been breached.
For Hart, what makes a legal system hang together is not mere habit but officials’ internal point of view towards shared secondary rules. Secondary rules exist to cure the defects of a world of only primary rules: uncertainty (settled criteria for validity), static character (rules of change), and inefficiency (rules of adjudication providing institutions and procedures to determine breaches). Hart argues that because language is open-textured, hard cases can leave a “penumbra” (grey area) where judges have limited discretion; however, the point of secondary rules is to channel that discretion and stabilise expectations. A uniform justificatory method (like structured proportionality) strengthens this internal practice by giving officials convergent criteria to use as genuine guides for criticism, compliance, and legislative planning.
When the court fragments, Hart’s worry about uncertainty at the point of adjudication materialises. Hart states that those who apply the rules of adjudication also commit to a rule of recognition, as they must make authoritative determinations of what the rules are. If judges diverge on which test is required, there is no settled rule of recognition on which test to apply. That uncertainty negatively feeds into the primary rules and the rule of change. Statutes that restrict political speech start being drafted too broadly to satisfy every different test each Justice prefers, not to the true intention of the law. While Hart is clear that disagreement and limited judicial discretion in hard cases are inevitable (he rejects both the “Nightmare” that judging is just politics and the “Noble Dream” that there is always one demonstrably right answer), he nevertheless also treats the secondary rules as necessary to reduce uncertainty. It would be contrary to Hart’s object to believe that judges should haphazardly apply tests. In Hart’s terms, this is the very uncertainty secondary rules are meant to cure.
Reuniting around McCloy
There should be a uniform SPT for the implied freedom of political communication. I reach this conclusion by relying on Hart’s framework of how legal systems operate.
While Hart acknowledges that judges can utilise limited discretion in the “penumbra”, Lange’s formula of “reasonably appropriate and adapted” has been criticised as being “unsatisfactorily vague” – leaving the penumbra infeasibly large. On Hart’s account, the remedy is not to deny judicial discretion; instead, it is to organise it so that adjudication fulfils its purpose of providing a clear, authoritative mechanism for resolving disputes. That is exactly what the court achieved in McCloy by creating the SPT that streamlined reasoning through a tripartite structure. Once that test was utilised more, as seen in Brown and Clubb, officials could now adopt it from the “internal point of view”. In turn, drafters could now anticipate the scrutiny their bills would face, and agencies could administer their powers without guessing on interpretation.
Ravbar precisely shows how fragmentation breaks down the rules of recognition. As stated, Hart’s view is that judges are uniquely empowered through not only the rules of adjudication, but also the rules of recognition. Further, Hart warns that the guidance value of judgments “fluctuates with the consistency of the judges”. When some justices treat proportionality as optional and others insist on it, adjudication still produces winners and losers yet ceases to function as a reliable guide. This leads to over-broad statutes that chill speech “just in case,” or vague compromises that gamble on which test a future bench prefers. Additionally, Justice Edelman warns that “judicial decisions in such cases would be open to the criticism that teleological reasoning had been deployed to justify an idiosyncratic policy preference”. This is precisely the uncertainty that good adjudicative practice exists to reduce.
Recommitting to a uniform, SPT restores guidance without pretending that every case has a mechanical answer. Critics worry that structured proportionality collapses into a box-ticking policy, disregarding essential judicial discretion. Importantly, however, an imposition of a default rule is not a straitjacket on judicial thought. Judicial discretion is still quintessential in determining proportionality through suitability, necessity, and adequacy; these are not questions that can be answered with light reasoning.
Taking a Hartian lens, the implied freedom does not lose its application within the rule of adjudication when the court declines to use a single method; rather, it lacks a stable rule of recognition. Parliament legislates most responsibly when the adjudicative standard is settled. The court should therefore reunite around structured proportionality, not because law ceases to exist without it (Hart does not say that), but because secondary-rule convergence reduces uncertainty and improves legislative planning.
Call to action
The implied freedom of political communication guards the ground rules of democratic choice. It deserves a stable method, not a roll of the dice. Ravbar exposed a drift in the recognition of the law that eroded clarity and consistency. Hart’s theory proves the cure is modest and proven: return to the structured proportionality framework that has guided a decade of cases and keeps reasoning predictably fair. The High Court should say so, clearly, and soon. When the rules are clear, debate is freer, drafting is better, and the Constitution does what it promises. Bring back clarity. Bring back structure.
Jacob Cuttle is studying a bachelor of laws (honours) / bachelor of economics (econometrics minor) at the Australian National University. His interests span corporate, regulatory, and public law. The views expressed are his own.
