Interstate intercourse

Although it was not a decisive factor, it was argued that freedom of communication falls under freedom of interstate intercourse.

Per Brennan J, the protection in section 92 is given to such things as the movement of people, goods and communications. The essential ingredient is that there is movement across State boundaries, although the movement need not be perceivable. A test can be specified as follows:

• Is there a burden on interstate intercourse?
• What is the purpose of the law? If the purpose of the law is to hinder interstate intercourse, then the law is invalid.
• If not, is there another purpose to the law? If so, is the burden on interstate trade and commerce appropriate and adapted to that purpose?

Implied freedom of political communication

Brennan, Deane, Toohey and Gaudron JJ thought that it was within the conciliation head of power, but that it infringed the implied freedom of political communication. Mason CJ, McHugh and Dawson JJ, however, held that it was outside the head of power.

Proportionality

Nationwide News is the key case where the concept of proportionality is discussed. Proportionality is the idea that there should be a reasonable relationship between an end and the means used to achieve that end. It has been used for:

• Determining if a law has breached constitutional guarantees.
• Purposive powers, if there is a reasonable relationship between the law and the purpose used to achieve it.
• Non-purposive powers, if there is a sufficient connection to a head of power to fall within its implied incidental power.

Dawson J rejects the proportionality test as suggested by Mason CJ, arguing that it should be a test of sufficient connection, and not proportionality.