By Dr Jemimah Roberts and Dr Shireen Morris -
Snapshot
- A majority of the High Court has signalled that the three-part structured proportionality test endorsed in the 2015 decision of McCloy v New South Wales need not be applied in every implied freedom case to assess whether a law is ‘reasonably appropriate and adapted’ to a legitimate purpose. Whether this shift heralds the rise of a ‘calibrated scrutiny’ approach remains to be seen.
- Divisions over the implied freedom’s constitutional foundations have re-emerged and deepened, with one Justice explicitly questioning the doctrine’s legitimacy and inviting submissions it should be reconsidered—or even abandoned.
- The case law confirms laws that go beyond what is necessary to achieving their purpose, when less restrictive alternatives are available, risk impermissibly burdening the implied freedom.
The year 2025 marked a significant chapter in Australian jurisprudence on the implied freedom of political communication (‘implied freedom’). The High Court handed down three major decisions: Babet v Commonwealth; Palmer v Commonwealth [2025] HCA 21 (‘Babet’), Ravbar v Commonwealth [2025] HCA 25 (‘Ravbar’) and Farmer v Minister for Home Affairs [2025] HCA 38 (‘Farmer’).
In each case, the Court unanimously rejected challenges to legislation on implied freedom grounds. However, while the outcomes suggest consensus, the reasoning in the cases reveals complexity and disagreement.
