Calibrated Proportionality
| DOI | 10.1177/0067205X19890439 |
| Date | 01 March 2020 |
| Published date | 01 March 2020 |
| Subject Matter | In Focus: Proportionality |
Federal Law Review
2020, Vol. 48(1) 92–122
Calibrated Proportionality
ª The Author(s) 2019
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DOI: 10.1177/0067205X19890439
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Rosalind Dixon*
Abstract
The High Court currently applies two different tests to determine the validity of laws that
effectively burden the implied freedom of political communication (‘IFPC’) under the Consti-
tution—a test of ‘structured proportionality’ and one of ‘calibrated scrutiny’. Both tests have
potential advantages, and disadvantages, but there is also a case that, over time, the Court should
again adopt a single approach to assessing the validity of laws burdening the IFPC. The article
therefore explores what it might mean to create a true hybrid between the two current
approaches—that is, a test of ‘calibrated proportionality’. Such an approach, it suggests, should
be understood as having three key dimensions: first, explaining how and when certain context-
specific ‘calibrating’ factors could usefully inform a test of ‘necessity’ and ‘adequacy in the
balance’ under a test of structured proportionality; second, showing how attention to consti-
tutional values can help calibrate the intensity of the Court’s application of the tests; and third,
suggesting a well-identified continuum for calibrating the intensity of judicial review, based on
four broad categories of case.
I Introduction
The High Court currently applies two broad tests to determine whether laws impermissibly burden
the implied freedom of political communication (‘IFPC’) under the Commonwealth Constitution: a
test of ‘structured proportionality’ and a more traditional test, which asks whether a law is ‘reason-
ably appropriate and adapted’ to achieving a legitimate end in a manner compatible with the
constitutionally prescribed system of representative and responsible government (‘reasonably
appropriate and adapted formula’).1
1. See Adrienne Stone, ‘Proportionality in Australian Constitutional Law’ (Maurice Byers Annual Lecture, NSW Bar
Association, 5 December 2018) (‘Proportionality’); Evelyn Douek, ‘All Out of Proportion: The Ongoing Disagreement
about Structured Proportionality in Australia’ (2019) 47(4) Federal Law Review (advance); Shipra Chordia,
‘Proportionality in Australian Constitutional Law’ (PhD Thesis, University of New South Wales, 2018).
* Professor of Law, UNSW Sydney, Australia. My thanks to Janina Boughey, Lisa Burton Crawford, Evelyn Douek, Joshua
Gibson, Zsofia Korosy, Brendan Lim, Sir Anthony Mason, Elizabeth Perham, Shreeya Smith, Adrienne Stone, Murray
Wesson and the two anonymous referees for helpful comments on previous versions of the paper and to Melissa Vogt for
outstanding research assistance. The author may be contacted at rosalind.dixon@unsw.edu.au.
Dixon
93
The first test, of structured proportionality, was endorsed by a majority of the Court in McCloy v
NSW (‘McCloy’).2 More recently, in Clubb v Edwards; Preston v Avery (‘Preston’),3 five members
of the Court affirmed their support for a test of structured proportionality. Gageler J, however, has
consistently dissented from the adoption of such a test, suggesting that it is preferable to rely on the
reasonably appropriate and adapted formula.4 In taking this approach, his Honour has further
highlighted a range of contextual factors relevant to the application of this formula and suggested
that its application should be ‘calibrated’ in the light of both prior precedent and the Court’s role in
protecting the institutions of responsible and representative government (‘calibrated scrutiny’).
Gordon J has likewise endorsed this approach and explained why she regards it as superior to a test
of structured proportionality.
Both approaches arguably have advantages, and disadvantages, as elaborations of the Lange v
Australian Broadcasting Corporation (‘Lange’) test: structured proportionality, it is argued, tends
to promote greater clarity and consistency in the Court’s articulation of the Lange test across
cases.5 Yet it is also criticised for providing less flexibility and case-specific guidance than
calibrated scrutiny in the ultimate application of a reasonably appropriate and adapted formula.6
Calibrated scrutiny, on the other hand, is seen to offer a less consistent and predictable approach.
Some scholars further suggest that the two approaches may differ in their ‘fit’ with the Australian
constitutional tradition.7
The article largely puts to one side these debates about the merits of the two different
approaches, and instead considers whether it might be possible for the Court to develop a hybrid
approach, which combines aspects of both structured proportionality and calibrated scrutiny.
The possibility of such a ‘hybrid approach’ has been foreshadowed by other scholars both
elsewhere and in Australia.8
The article, however, proposes a specific form of hybrid approach that: (i) connects the insights
of current precedent-based forms of calibrated scrutiny to the internal structure of a test of struc-
tured proportionality, to give greater structure and nuance to the application of such a test; (ii)
explicitly draws on constitutional values to inform and calibrate the application of a test of
structured proportionality; and (iii) proposes a continuum for, rather than truly categorical or
rule-like approach to, calibrating the application of the Lange test.
This approach is informed by an awareness of comparative approaches to proportionality and
tiered scrutiny in Canada, South Africa and the United States (‘US’) and my own previous
arguments in the Federal Law Review about the potential role for ‘constitutional values’ under
a functionalist approach to constitutional construction.9 But it also aims to provide an approach
2. (2015) 257 CLR 178 (‘McCloy’).
3. (2019) 93 ALJR 448 (‘Preston’).
4. McCloy (n 2) 235–7 [141]–[146]; Brown v Tasmania (2017) 261 CLR 328, 377–9 (‘Brown’); Preston (n 3) 485–6 [174],
487–8 [181].
5. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’). See below Part III.A.
6. Ibid.
7. Ibid.
8. Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) 542;
Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political
Communication’ (1999) 23(3) Melbourne University Law Review 668 (‘Limits’); Stone, ‘Proportionality’ (n 1); Chordia
(n 1); Douek (n 1).
9. Cf Rosalind Dixon, ‘The Functional Constitution: Re-reading the 2014 High Court Constitutional Term’ (2015) 43(3)
Federal Law Review 455 (‘Functional Constitution’).
94
Federal Law Review 48(1)
that is consistent with both existing tests of structured proportionality and calibrated scrutiny, and
that all members of the Court could therefore endorse, consistent with their existing jurisprudential
approach. It is for this reason that the approach is labelled one of ‘calibrated proportionality’.
Further, the article notes the potential principled virtues to an approach of this kind: one could
argue that calibrated proportionality does better than both structured proportionality or calibrated
scrutiny in promoting the combined ideals of certainty, predictability and appropriate flexibility
and case-specific guidance in the application of the Lange test. Whether these virtues in fact arise
in practice will largely depend on how such a test is applied by the Court itself.10 The main case for
any hybrid approach, therefore, is pragmatic in nature: it is that over time, there are clear benefits
to the Court again finding a way to apply a single, unified approach to the application of the Lange
test. And the aim of the article is to provide the Court with a road map for doing just that—in the
form of a test of ‘calibrated proportionality’.
The remainder of the article is divided into five sections. Part II sets out the two broad current
approaches of the Court towards the IFPC. Part III outlines the idea of a hybrid approach, specif-
ically the idea of ‘calibrated proportionality’ and its potential pragmatic and principled advantages.
Part IV focuses on the relationship between specific factors identified as relevant to calibrated
scrutiny and the tests of necessity and adequacy in the balance. Part V considers how attention to
functionalist considerations, or constitutional values, may help calibrate a test of adequacy in the
balance. Part VI explains how these precedent-based and functionalist considerations could be
combined to create four broad intensities of review under a test of adequacy in the balance. And
Part VII offers a brief conclusion.
II Two Approaches to Justification: Proportionality Versus Calibrated
Scrutiny
The High Court in Australian Capital Television Pty Ltd v Commonwealth (‘ACTV’) identified
freedom of ‘political communication’ as a key implication of the Constitution’s provision for a
system of representative government and democracy.11 In Lange, the Court also unanimously
affirmed the idea that the Constitution contains an implied guarantee of freedom of political
communication, holding that the IFPC found clear support in the text and structure of the Consti-
tution—including the provisions of ss 7 and 24 providing for a system of representative and
responsible government.12
The Court in Lange further identified a two-stage test for determining whether Commonwealth
or state legislation impermissibly burdens the IFPC: (i) whether a law effectively burdened polit-
ical communication; and (ii) if it did, whether it...
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