Bridging the Divide? Proportionality and Calibrated Scrutiny

Published date01 June 2020
AuthorAnne Carter
Date01 June 2020
Subject MatterIn Focus: Proportionality (responding to papers in issue 48(1))
FLR906622 282..285 In Focus: Proportionality (responding to papers in issue 48(1))
Federal Law Review
2020, Vol. 48(2) 282–285
Bridging the Divide?
ª The Author(s) 2020
Article reuse guidelines:
Proportionality and
DOI: 10.1177/0067205X20906622
Calibrated Scrutiny
Anne Carter*
Structured proportionality testing, it seems, is here to stay. Despite its somewhat tentative begin-
nings,1 five justices of the High Court have now endorsed a structured approach to proportionality in
the context of the implied freedom of political communication.2 Given this, the most pressing issue
then becomes not whether the High Court should retain structured proportionality as a method of
analysis, but how this should be done. In other words, how can the minority justices’ criticisms of
structured proportionality be addressed or accommodated? And how can the Court ensure propor-
tionality is applied consistently with the Australian constitutional system? It is to these important
questions that both Professors Adrienne Stone and Rosalind Dixon make interventions.
Both Stone’s and Dixon’s contributions can be seen as attempts to bridge the divide between the
majority and minority justices of the High Court. This jurisprudential divide, first clearly articu-
lated in McCloy v New South Wales (‘McCloy’),3 has since become entrenched in the subsequent
implied freedom jurisprudence. A majority of the Court continues to endorse a tripartite test of
proportionality—clearly stemming from European origins—which incorporates the familiar ele-
ments of suitability, necessity and ‘adequate . . . balance’.4 Both Gageler J and Gordon J, on the
other hand, have critiqued this new approach, preferring the previous ‘reasonably appropriate and
adapted’ formulation. Justice Gageler’s preference, in particular, is for a form of ‘precedent-based
calibrated scrutiny’.5 Stone and Dixon suggest this current disagreement within the Court might, in
1. As Sir Anthony Mason observed, it was unclear whether the ‘bare majority’ in McCloy v New South Wales would
‘survive a change in the composition of the Court’: Sir Anthony Mason, ‘The Use of Proportionality in Australian
Constitutional Law’ (2016) 27 Public Law Review 109, 123.
2. See Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448, 462 [6], 470–1 [70]–[74] (Kiefel CJ, Bell and Keane JJ),
506–9 [266]–[275] (Nettle J),...

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