by reference to the legal and practical operation of the law: Tajjour v New South Wales [2014] HCA 35; 254 CLR 508 at [106], [145] and [156]; Brown v Tasmania [2017] HCA 43; 261 CLR 328 at [84], [118], [180], [237], [316], [326], [484]–[488].
319 The question is to be answered "yes" if the "effect of the law is to prohibit, or put some limitation on, the making or the content of political communications": Monis at [108]. In the event that there is a meaningful restriction on political communication, "the supervisory role of the courts is engaged to consider the justification for that restriction": McCloy at [127]; Farm Transparency at [26].
320 The extent to which there is a burden must be examined in order to determine whether the requisite threshold has been reached as the burden step in the analysis is "more than a box to be ticked": McCloy at [127]; Brown at [237]; LibertyWorks at [209]–[210]. It is a threshold, but the threshold is not high – "a law which prohibits or limits political communication to any extent will generally be found to impose an effective burden": Banerji at [29]. It is only that prohibition or limitation on political communication which is so slight as to have no real effect that would fail to meet the threshold: Brown at [237].
321 The question of whether a law imposes an effective burden on the freedom requires consideration of whether and how the impugned law affects political communication generally, rather than how the law applies to political communication in which an applicant wishes to engage: Unions NSW v New South Wales (Unions No 1) [2013] HCA 58; 252 CLR 530 at [35]; Banerji at [20]; LibertyWorks at [77]. That focus reflects the nature of the freedom. As McHugh J explained in Levy v Victoria [1997] HCA 31; 189 CLR 579 at 622, "our Constitution does not create rights of communication", but rather "gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters." Political communication is defined broadly: Lange at 571.
322 Senator Hanson submits, and the Attorney-General accepts, that Pt IIA of the RDA effectively burdens the implied freedom of political communication, whereas Senator Faruqi submits that it does not. Senator Hanson submits that the burden is substantial, whereas the Attorney-General submits that is slight. Given those competing positions, and the constitutional analysis that must take place, it is necessary to consider not only whether there is an effective burden, but also, if there is, its extent. The extent of the burden can be analysed with reference to both its breadth and its depth: LibertyWorks at [210].
