Farm transparency and the problem of statutory purpose in the implied freedom test

Academic literature regarding the implied freedom of political communication has tended to focus on proportionality analysis: whether the law is reasonably appropriate and adapted to its legitimate purpose. In this article, we investigate how the High Court determines statutory purpose for the implied freedom test – an aspect under-analysed in the literature. Through examination of the case law, we show that how the High Court determines statutory purpose can be decisive for subsequent proportionality analysis and the ultimate finding of validity or invalidity. It can shift the benchmark against which a law’s suitability, necessity and adequacy in the balance is assessed. However, the High Court’s approach to determining statutory purpose has been at times uncertain and varied, with serious consequences for the implied freedom. We critique the 2022 Farm Transparency decision in light of the case law to distil remaining uncertainties and questions regarding statutory purpose, in the hope of stimulating further research and debate.