Buckley v Council of the Law Society of New South Wales

In Buckley v Council of the Law Society of New South Wales, the plaintiff, a solicitor, challenged the decision of the Council of the Law Society of New South Wales to suspend him. The suspension arose from comments the plaintiff made on social media regarding a judgment of the court. Specifically, the plaintiff had alleged that a judge condoned murder and other violent crimes, which led to the Council's action. The plaintiff claimed that the suspension decision was flawed due to a failure by the Council to properly interpret and apply section 82 of the Legal Profession Uniform Law (NSW) in light of the implied freedom of political communication. Additionally, the plaintiff argued that the Council erred by not considering alternative sanctions before deciding to suspend him.

The court was tasked with determining whether the Council's failure to apply "proportionality testing" to its exercise of power under section 82 constituted a jurisdictional error. The plaintiff argued that the Council's decision was influenced by the implied freedom of political communication, which requires that restrictions on political expression be proportionate to the objective sought to be achieved. The court needed to assess whether this freedom was relevant to the administrative action taken by the Council and if the failure to consider this freedom resulted in a jurisdictional error. Furthermore, the court considered whether the Council's failure to explore alternative sanctions constituted a jurisdictional error or if it was a matter for merits review.

The court held that the implied freedom of political communication was not applicable to the administrative action taken by the Council. It distinguished between the principles of constitutional law, which protect the freedom of political communication, and the principles of administrative law that govern the exercise of statutory powers or discretions. The court found that the Council's decision did not involve a restriction on political expression but rather an exercise of its statutory power to regulate the legal profession. Therefore, the failure to consider the implied freedom of political communication did not constitute a jurisdictional error. Additionally, the court concluded that the decision not to consider alternative sanctions was not a jurisdictional error but a matter for merits review. The plaintiff's application for judicial review was dismissed.