Moving Beyond the Common Law Objection to Structured Proportionality

AuthorAnne Carter
Date01 March 2021
DOI10.1177/0067205X20981512
Publication Date01 March 2021
SubjectArticles
FLR981512 73..95 Article
Federal Law Review
2021, Vol. 49(1) 73–95
Moving Beyond the Common
ª The Author(s) 2021
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Law Objection to Structured
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DOI: 10.1177/0067205X20981512
Proportionality
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Anne Carter*
Abstract
This article examines the claim that the adoption of structured proportionality testing in Australian
constitutional review is ill-suited to Australia’s common law tradition. That objection has been
stated by some members of the High Court and scholars, though the precise basis of the objection
has not been clearly articulated. This article clarifies and evaluates this objection, setting out a
number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately,
the article argues that the objection has been too starkly cast and that Australia’s common law
tradition does not present an insurmountable obstacle to the introduction of proportionality
testing in constitutional review.
I Introduction
Despite its continental origins, a structured form of proportionality testing has now been adopted as
a method of constitutional review in a number of common law jurisdictions.1 In Australia, how-
ever, there continues to be uncertainty about the appropriateness of such a test when assessing
constitutional limitations. While a majority of the Court has adopted a structured, three-part
proportionality analysis, mirroring tests used elsewhere, the Australian test remains contested and
controversial. This article focuses on one particular criticism—what I term the ‘common law
objection’ to proportionality review—whereby it has been suggested that the style of reasoning
and types of judgments that proportionality require sit uncomfortably within Australia’s common
law tradition of legal reasoning. In particular, critics claim that a more ‘categorical’ approach,
where there are different levels of constitutional scrutiny applied depending on the type or category
1. For example, in Canada, see R v Oakes [1986] 1 SCR 103, 138–9; in New Zealand, see R v Hansen [2007] 3 NZLR 1, 28,
45–6, 69; and in the United Kingdom, see Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, 771.
* Senior Lecturer, Deakin Law School. Thank you to Caitlin Goss, Matthew Groves, Cheryl Saunders, Elizabeth Sheargold,
Adrienne Stone and Lael Weis for their comments on an earlier version of this article. I am also grateful to the participants
at the Constitutional Scholars’ Day hosted by Melbourne Law School in July 2019, where this article was first presented,
and to the two anonymous referees, for their helpful suggestions. The author may be contacted at anne.carter@deakin.
edu.au.


74
Federal Law Review 49(1)
of law in issue, would be more consistent with the common law tradition. Although the common
law objection has been raised by various members of the High Court in a series of judgments since
2015, the precise nature of the objection remains unclear. The objection has not been closely
scrutinised in the growing academic literature on proportionality, despite its potentially wide-
ranging ramifications.2
This article both clarifies and evaluates this objection—that proportionality testing is ill-suited
to Australia’s common law tradition—and the extent to which it might raise legitimate concerns
about the introduction of proportionality in Australia. The focus of the article is on the adoption of
proportionality testing in the context of the implied freedom of political communication.3 Part II
of the article explains that the objection has emerged in response to a specific three-part form of
proportionality testing, known as ‘structured proportionality’, rather than proportionality reasoning
in a more general sense. Part III examines the nature of the common law objection, setting out how
it has been developed by the minority justices of the High Court and delineating a number of
discrete concerns which may be seen to be encapsulated under the umbrella of this objection. By
disaggregating these concerns, this article helps to elucidate the real sources of the Australian
resistance to structured proportionality. Part IV evaluates and analyses the merits of the common
law objection. It argues that claims about the common law tend to have been too starkly cast and
that Australia’s common law tradition does not provide a convincing basis for resisting the
introduction of structured proportionality, at least in the context of the implied freedom. By
clarifying—and ultimately rejecting—the common law objection, this analysis enables the debate
over proportionality to shift away from the question of whether proportionality ought to be adopted
and to focus instead on how proportionality can be further refined in the Australian context.
II Igniting the Debate: The Emergence of Structured Proportionality
Testing

The common law objection has emerged in response to the introduction by a majority of the High
Court, in McCloy v New South Wales (‘McCloy’)4 in 2015, of a three-part test of proportionality in
order to determine whether a law is compatible with the implied freedom of political communi-
cation. This test, which is often described as one of ‘structured proportionality’, requires the Court
to assess whether the law is ‘suitable’, ‘necessary’ and ‘adequate in its balance’.5 Under the first
step of suitability, the Court is required to ask whether the law has a ‘rational connection’ to its
purpose.6 Secondly, at the necessity stage, the Court must ask whether there is any reasonably
practicable ‘obvious and compelling alternative’ that has a less restrictive impact on the freedom.
Finally, at the third stage, the Court must ultimately make a value judgment and assess the ‘balance
2. While the consistency of proportionality with Australia’s common law tradition has been touched upon in the existing
scholarship, the objection deserves fuller attention. For some preliminary discussion, see Evelyn Douek, ‘All Out of
Proportion: The Ongoing Disagreement about Structured Proportionality in Australia’ (2019) 47(4) Federal Law Review
551, 566–8; Rosalind Dixon, ‘Calibrated Proportionality’ (2020) 48(1) Federal Law Review 92, 98–9, 101; Adrienne
Stone, ‘Proportionality and Its Alternatives’ (2020) 48(1) Federal Law Review 123, 139, 152.
3. See below n 23.
4. McCloy v New South Wales (2015) 257 CLR 178 (‘McCloy’).
5. These three steps were elaborated by the Court in McCloy (n 4) 195 [2], 217–19 [79]–[87] (French CJ, Kiefel, Bell and
Keane JJ). Note that in McCloy the plurality use the term ‘proportionality testing’, but I have adopted ‘structured
proportionality’ to distinguish it from proportionality in a more general sense.
6. McCloy (n 4) 195 [2].

Carter
75
between the importance of the purpose served by the restrictive measure and the extent of the
restriction it imposes on the freedom’.7 Even though similar inquiries were undertaken under the
previous ‘appropriate and adapted’ approach,8 the new tripartite test requires each of the three sub-
questions to be asked sequentially and in this way provides more structure for the Court’s decision-
making. The new test, it is worth noting, was not intended to replace the traditional two-part Lange
test but simply to refine it.9 The three stages of proportionality testing mirror those found in
German proportionality analysis, where the doctrine first emerged, although with some modifica-
tions to reflect the Australian setting.10
Despite the widespread use of similar tests elsewhere, in Australia the adoption of this struc-
tured form of proportionality has been accompanied by vigorous debate and disagreement.11 This
includes contestation over the precise nature of the test, when and how it should be applied, and
whether it is appropriate at all.12 So far the new test has only been applied in the context of the
implied freedom of political communication. In the 2016 case of Murphy v Electoral Commis-
sioner, which concerned a challenge to federal electoral laws, a majority of the Court declined to
apply the three-staged proportionality test.13 There are also a number of aspects of the new test that
remain unclear, such as whether the Court ought to adopt a variable standard of scrutiny and the
appropriate role of judicial deference.14 At a more fundamental level, the Court itself remains
divided about whether proportionality is an appropriate standard to be applied in the Australian
context at all. Existing scholarship, most notably from Adrienne Stone, has addressed the extent to
which proportionality is consistent with Australia’s constitutional context.15 This article builds
upon this scholarship by tackling the more specific claim that proportionality is ill-suited to the
common law tradition of legal reasoning, as that is applied in Australia.16
Before proceeding to analyse this objection in more detail, it is important to note that this
objection has emerged specifically in response to the adoption of a structured, three-part test of
7. Ibid.
8. See below n 154.
9. McCloy (n 4) 200 [23]. The majority’s approach has been described as a ‘re-writing’ of the Lange test: see Anne
Twomey, ‘McCloy v New South Wales: Out with US Corruption and in with German Proportionality’ on AUSPUBLAW
(15 October 2015) https://auspublaw.org/2015/10/mccloy-v-new-south-wales/>.
10. See discussion below in Part IV(A). See also Anne Carter, ‘Proportionality in Australian Constitutional Law: Towards
Transnationalism’ (2016) 76 Heidelberg Journal of International Law 951, 960–2.
11. For some recent...

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