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 signage.
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 property).
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 political communication.
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 its balance.1
- Suitable:
Is there a reasonable connection between the provision in question and the legitimate purpose [of the local law]? - Necessary:
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, and
- the public importance of the purpose sought to be achieved by the legislation.
The High Court in Attorney-General (SA) v Corporation of the City of Adelaide [2013] 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.
Footnote
1 McCloy v New South Wales [2015] HCA 34, [79] (French CJ, Kiefel, Bell and Keane JJ).
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