All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| Author | Evelyn Douek |
| DOI | 10.1177/0067205X19875010 |
| Subject Matter | Articles |
Article
All Out of Proportion:
The Ongoing Disagreement
about Structured
Proportionality in Australia
Evelyn Douek*
Abstract
In 2015, a majority of the High Court of Australia incorporated structured proportionality testing
into Australian constitutional law for the first time, but the test’s suitability for Australian law has
been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates:
while structured proportionality testing now seems to have the support of a solid majority of
current members of the High Court, the dissentients seem as strongly opposed as ever and
continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three
main criticisms levelled against structured proportionality in Australia: that it is too indeterminate,
that it involves judges transgressing the separation of powers, and that it is inappropriate in the
unique context of the implied freedom of political communication (‘the freedom’). There are
reasons why these critiques of structured proportionality carry particular weight and resonance in
Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But
these reasons are also why adoption of structured proportionality is consistent with Australia’s
constitutional commitments and jurisprudence. The question of whether structured pro-
portionality is beneficial needs to start with the question of ‘compared to what?’ Many of the cri-
ticisms levelled against structured proportionality apply all the more forcefully against the prior
test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And
the inherent commitments of proportionality make it better suited to Australian law than the
increasingly proposed alternative of a categorical approach. The particular method of judicial
reasoning in cases concerning the freedom might seem like a highly abstract and theoretical
question, especially when the justices applying differing methods largely agree on the merits in the
relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The
project of making reasoning more transparent and constrained is significantly undermined by
uncertainty as to whether and how the test will be applied at all. There are also second-order
effects in the form of institutional costs. In the context of the freedom, where judicial review has
* SJD Candidate, Harvard Law School. Sincere thanks to Vicki Jackson and Ros Dixon for their helpful comments and
encouragement. Thanks also to the anonymous reviewers, and to the edit ors of the Federal Law Review for their
exceptional work. Financial support received from the HLS Summer Academic Fellowship Program. Errors are
indubitably mine. The author may be contacted at edouek@law.harvard.edu.
Federal Law Review
2019, Vol. 47(4) 551–582
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19875010
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long been controversial, the division of the Court into pro- and anti-structured proportionality
factions has particularly high costs to institutional integrity and legitimacy. At some point there will
be a question of whether the damage of warring judgments over method outweighs the damage
done by choosing even the ‘worst’ of the available options. This article argues that structured
proportionality is not that ‘worst’ option.
I Introduction
In the 2015 case of McCloy v New South Wales (‘McCloy’),
1
a majority of the High Court of
Australia incorporated structured proportionality testing into Australian constitutional law for the
first time. Although proportionality is now the globally dominant form of judicial review,
2
its place
in Australian law has been contentious. In McCloy, two justices in particular strongly dissented
against its adoption.
3
Nevertheless, the majority’s decision was generally regarded as heralding a
new chapter of judicial review of legislation said to infringe the implied freedom of political
communication (‘the freedom’). This belief was short-lived—decisions that followed cast doubt
on the place of structured proportionality in Australian constitutional law. The first case after
McCloy to consider the question, Murphy v Electoral Commissioner (‘Murphy’),
4
provoked judi-
cial statements suggesting significant hostility to structured proportionality’s applicability in con-
texts other than review of legislation said to restrict the freedom.
5
The 2017 case of Brown v
Tasmania (‘Brown’)
6
further undermined prevailing confidence in the life of the new test. A
divided Court suggested that the significant disagreement among the justices about the role of
structured proportionality in Australian law would persist even in cases implicating the freedom.
7
The recent case Clubb v Edwards (‘Clubb’)
8
is an ambivalent result for the test’s advocates: while
structured proportionality testing now seems to have the support of a solid majority of current
members of the High Court, the dissentients seem as strongly opposed as ever and continue to be
vocal about the test’s unsuitability for Australian law.
9
There are three main criticisms levelled against structured proportionality in Australia: that it is
too indeterminate, that it involves judges transgressing the separation of powers, and that it is
inappropriate in the unique context of the freedo m. There are reasons why these critiques of
structured proportionality carry particular weight and resonance in Australia’s constitutional cul-
ture, marked as it is by legalism and deference to the legislature. But these reasons are also why
adoption of structured proportionality is consistent with Australia’s constitutional commitments
and jurisprudence. The question of whether structured proportionality is beneficial needs to start
with the question of ‘compared to what?’ Many of the criticisms levelled against structured
proportionality apply all the more forcefully against the prior test of whether the legislative
measure is ‘appropriate and adapted’ to serve a legitimate end in a manner which is compatible
with the system of representative and responsible government established by the Constitution.
10
Furthermore, the criticisms ignore the fact that proportionality’s adherents on the Court have made
modifications to the test to adapt it to its context.
The particular method of judicial reasoning in cases concerning the freedom might seem like a
highly abstract and theoretical question, but this continuing uncertainty and divergence on the
Court has tangible costs. One of the key promises of structured proportionality is that it will make
judicial reasoning more constrained and transparent. This project is significantly undermined by
uncertainty as to whether and how the test will be applied at all. But there are also second-order
effects in the form of institutional costs. The practice of judicial review in the context of the
552 Federal Law Review 47(4)
freedom has been controversial from its inception. The discovery of something so fundamental as a
freedom of political communication as implied by the Constitution, despite it not being referred to
in over 90 years of prior judicial interpretation of the document, inevitably brought charges of
illegitimate judicial activism. Controversy persisted as the test initially deployed by the Court was
criticised by members of the Court and academy alike for being incoherent and insufficiently
constraining judicial subjectivity.
11
As such, in the context of the freedom, today’s Court is still in
a somewhat defensive position when it claims legitimacy for the power to review legislation and
the manner in which it does so. The division of the Court into pro- and anti-structured proportion-
ality factions therefore has particularly high costs to institutional integrity and legitimacy. Further-
more, the focus on the threshold question of form of review prevents due attention being given to
other elements within the process that remain under-theorised.
Something else is notable about the ongoing disagreement on the Court. While the justices
continue to disagree about the method, they largely agree on the outcome on the merits in the
relevant cases. Indeed, Clubb, being the latest example, was a unanimous decision. This raises a
deeper question: Does the method matter at all if it does not change outcomes? The fact that no
faction will cede ground suggests that it does. Indeed, an examination of the terms of the ongoing
disagreement shows that the method of judicial review adopted has significant implications for the
Court’s legitimacy and relationship with both the other branches of government and its constitu-
ents. At some point, though, there will be a question of whether the damage of warring judgments
over method outweighs the damage done by choosing even the ‘worst’ of the available options.
I argue that structured proportionality is not even that ‘worst’ option.
This article proceeds in three parts. In Part II, I briefly survey the development of judicial
review in the context of the freedom, culminating in the majority of the High Court adopting
structured proportionality. This review is necessarily cursory, but is important background for
understanding the cultural demands on judicial review in the context of the freedom. Part III
addresses criticisms of the adoption of structured proportionality in the Australian context and
seeks to show that, although they play on distinctively Australian concerns, they do not demon-
strate that structured proportionality cannot be adapted to Australian use. It is to these adaptations I
turn in Part IV, showing how the Court is beginning to develop a coherent theory of how structured
proportionality can be tailored to its Australian context. I also review the inherent commitments of
structured proportionality testing and how these reflect Australian Constitutional values. I con-
clude by suggesting that structured proportionality reflects these values more than a method of
judicial review based on categorisation, which is advocated by some critics of structured propor-
tionality, including Gageler J
12
andSirAnthonyMason.
13
Indeed, neither the United States
jurisprudence from which this approach is drawn nor the early signs of it in recent Australian
cases suggest the adoption a categorical approach would be a promising development in Australian
law.
II Appropriating and Adapting: Judicial Review in Freedom Cases
A Structured Proportionality in Australia
‘Proportionality’ as a general notion, distinct from structured proportionality, is not new to Aus-
tralian law. The term’s introduction is most often traced to 1983,
14
but was for a long time
understood only as denoting an idealised calibration of a law’s means of achieving its goal with
the restrictions it imposed on political communication. As such, it was often said that
Douek 553
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