Langer v. The Commonwealth of Australia 96/002 HIGH COURT: If the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within parliament’s power

Facts: Section 329A(1) of the Commonwealth Electoral Act 1918 (Cth) provides that a person must not print or publish anything which encourages persons voting at the election to fill in a ballot paper otherwise than in accordance with section 240 (which sets out how ballot papers should be marked). The plaintiff contended that he was constitutionally entitled to publish material encouraging persons to fill in their ballot papers otherwise than in accordance with s240 so that, if the encouragement is taken, their ballot papers would be informal. One of the arguments he put forward in support of his case was that s329A was invalid because it infringes the freedom of communication about political matters which the High Court has held to be implied in the Constitution.

Held per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ: that section 329A of the Act was valid. Per Brennan CJ, the powers of the Parliament are impliedly limited so as to preserve that freedom of political discussion which is essential to the maintenance of the Commonwealth system of representative government. But the extent of the limitation depends on the particular circumstances, including especially the subject matter of the law which impairs the freedom. If the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within power.

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