McCloy & Ors v State of New South Wales & Anor

The applicants, McCloy and others, challenged the constitutional validity of certain provisions of the *Coastal Protection Act 1979* (NSW) and the *Environmental Planning and Assessment Act 1979* (NSW), as amended. The State of New South Wales and the Minister for Planning were the respondents. The dispute concerned the power of the Minister to grant development consent for projects on land identified as being at risk from coastal erosion or inundation, notwithstanding the provisions of the *Coastal Protection Act* which generally prohibited such development. The matter was heard by the High Court of Australia.

The High Court was required to determine whether the impugned provisions of the *Environmental Planning and Assessment Act*, which allowed the Minister to override the prohibitions in the *Coastal Protection Act*, were invalid on the ground that they contravened the implied freedom of political communication protected by Chapter I of the Constitution. Specifically, the Court had to consider whether the provisions imposed an unreasonable burden on the implied freedom by restricting the ability of individuals to communicate about matters of government policy and administration concerning coastal protection and development.

The Court reasoned that the implied freedom of political communication protects communications about the conduct of government and political or governmental matters. While the *Coastal Protection Act* aimed to protect coastal areas, the amendments to the *Environmental Planning and Assessment Act* allowed for development in those areas under specific circumstances, thereby engaging in political and governmental discourse. The Court found that the provisions did not impose an unreasonable burden on the implied freedom because they were reasonably appropriate and adapted to serve a legitimate purpose (facilitating development in a controlled manner) and were compatible with the maintenance of the system of representative and responsible government mandated by the Constitution. The Court applied the proportionality test established in *Lange v Australian Broadcasting Corporation* and subsequent cases.

The High Court dismissed the application, upholding the constitutional validity of the impugned provisions.