compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
The construction of Pt IIA
314 Before assessing the constitutional validity of a law, it is necessary to identify its proper construction: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 at [11]; Farm Transparency International Ltd v New South Wales [2022] HCA 23; 277 CLR 537 at [139].
315 The established construction of s 18C in all relevant respects has been identified above (at [219], [224]–[231], [235]–[240] and [259]–[274]). The same is true of 18D generally (at [292]–[299]), ie the "reasonably and in good faith" requirements, and specifically in relation to s 18D(c)(ii) (at [300]). That leaves ss 18D(a), (b) and (c)(i).
316 In relation to s 18D(a), the expression "artistic work" "does seem to be used broadly" but "seems to contemplate works in both the visual and performing arts" and "literary works" are not excluded: Bropho at [104]. Artistic works "cover an infinite variety of expressions of human creativity": Bropho at [106]. It is therefore a broad exemption.
317 In relation to s 18D(b), the exemption "requires that a genuine purpose 'in' the public interest be pursued, not simply a matter 'of' public interest"; "[a] matter of public interest is broadly defined as a matter of interest or concern to people at large" which "is a very broad field" so it is doubtful that the latter is what the provision has in mind: Eatock v Bolt at [433]. This exemption speaks to conduct "in the pursuit of a public benefit through the exercise of freedom of expression. … [A]n additional pursuit of public benefit, beyond freedom of expression, is contemplated by the provision. What the provision is concerned with is the public interest use to which the freedom of expression is exercised and not merely freedom of expression itself": Eatock v Bolt at [434]. The exemption is assessed objectively: Eatock v Bolt at [435].
Question 1: does Pt IIA effectively burden the implied freedom?
318 The question of whether a law imposes an "effective burden" on political communication is a critical first step in the analysis. The answer to that question does not depend upon a "quantitative" analysis about whether the law imposes a "big" or a "little" burden: Monis v The Queen [2013] HCA 4; 249 CLR 92 at [172]–[173]. It is a "qualitative" question to be answered
