With local government elections expected to be held
early next year, and in advance of the proliferation of election
signage throughout the State, it is an opportune time to consider
how the Council can (and cannot) manage election
The Local Government Act 2009 and City of Brisbane
Act 2009 both contain clauses that prevent a Council making a
local law that 'prohibits election advertising'.
An argument has been suggested that the prohibition on
'prohibiting' election advertising does not limit the
Council's ability to 'regulate' election
advertising. This now appears to be generally accepted,
particularly where there is no distinction between election
advertising and other advertising (for example, on Council
It remains arguable that, if the regulation of election
advertising imposes a sufficiently high barrier, it would
effectively be a prohibition on that advertising.
Alternatively, it may be argued that particular limits on election
advertising would breach the implied constitutional freedom of
In relation to the implied freedon of political communication,
the proportionality test was recently re-stated in the decision of
the High Court in McCloy as consisting of three
components, whether the law is suitable, necessary and adequate in
Is there a reasonable connection between the provision in question
and the legitimate purpose [of the local law]?
Are there other, equally effective means of achieving the
legislative object that are less restrictive on the freedom and
that are obvious and compelling?
Adequate in balance:
Is the burden on the freedom undue, having regard to:
the extent of the effect of the legislation on the freedom,
the public importance of the purpose sought to be achieved by
The High Court in Attorney-General (SA) v Corporation of the
City of Adelaide  HCA 3 applied the proportionality test
to a local law which limited that freedom by preventing
'canvassing, preaching, or haranguing' on public land
without a permit. The High Court ultimately concluded that
the local law was valid.
What these cases tell us is that Councils, in considering their
local laws, particularly in relation to election advertising,
should consider the scope of the regulation proposed by those local
laws, and whether it could be seen to impermissibly burden the
implied freedom of political communication. Councils can do this by
applying the proportionality test.
1McCloy v New South Wales  HCA
34,  (French CJ, Kiefel, Bell and Keane JJ).
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