Proportionality and Calibrated Scrutiny: A Commentary

Date01 June 2020
AuthorThe Hon Sir Anthony Mason
Published date01 June 2020
Subject MatterIn Focus: Proportionality (responding to papers in issue 48(1))
In Focus: Proportionality (responding to papers in issue 48(1))
Proportionality and Calibrated
Scrutiny: A Commentary
The Hon Sir Anthony Mason*
For reasons which will become apparent I am not inclined to think that, in the context of the
implied freedom of political communication, the High Court is confronted with a choice between
proportionality and calibrated scrutiny. The two can coexist peacefully. If there is a choice to be
made, it is a choice between calibrated scrutiny and tiered scrutiny.
For reasons given by Adrienne Stone, structured proportionality is an appropriate analytical tool
for resolving the issues which arise, even if there is a need for a degree of ‘tweaking’. Firstly,
structured proportionality gives teeth to the conclusory formula ‘appropriate and adapted’, which
has a long history in Australian constitutional law. Secondly, even if, as is the case, structured
proportionality had its origins in, and is generally confined to, the protection of constitutional
individual rights and freedoms, there is no fundamental reason why it cannot be applied to protect a
freedom of political communication which is not a free-standing right or freedom but is an implied
restraint on legislative power. As such, the implied freedom may not have the same force as a free-
standing individual right but that is a matter which can be taken into account in the application of
structured proportionality. At the same time, in assessing the force of the implied freedom, we need
to remember that it protects responsible and representative government, as provided for by ss 7 and
24 of the Constitution, the central pillars of Australian constitutional democracy.
Thirdly, structured proportionality does not overtly reflect the separation of powers considera-
tions which are a fundamental element in Australian constitutional law. Adrienne Stone seeks to
make this point by suggesting that, in the Australian context, structured proportionality needs to
incorporate a notion of ‘deference’ to legislative judgement. The expression ‘deference’ has been
viewed with disfavour in Australia and England. The notion is better expressed as ‘respect’ for the
authority of the legislative judgement under the Constitution, in the light of the constitutional
separation of powers and the judiciary’s lesser competence to make value judgements on matters
which are usually left to political judgement. That structured proportionality can accommodate
such a notion was acknowledged by Aharon Barak, the arch-priest of structured proportionality,
when he discussed ‘the zone of proportionality’, that is, the zone of legislative discretion.
* The Hon Sir Anthony Mason AC KBE GBM QC is a former Chief Justice of the High Court of Australia and a former
Non-Permanent Judge of the Hong Kong Court of Final Appeal. The author may be contacted at siranthony@bigpond.
1. Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press, 2012) 416.
Federal Law Review
2020, Vol. 48(2) 286–287
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0067205X20906038

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