Proportionality and Its Alternatives
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| DOI | http://doi.org/10.1177/0067205X19890448 |
| Subject Matter | In Focus: Proportionality |
Federal Law Review
2020, Vol. 48(1) 123–153
Proportionality
ª The Author(s) 2019
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and Its Alternatives
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DOI: 10.1177/0067205X19890448
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Adrienne Stone*
Abstract
This article examines the claim that the adoption of structured proportionality analysis is not
well suited to the Australian constitutional context and argues that this claim is mistaken.
Structured proportionality analysis is sometimes associated with a strong commitment to fun-
damental constitutional rights which is, it is conceded, foreign to Australia. However, structured
proportionality can also be understood merely as a method of analysis which changes the High
Court’s previous approach only slightly. This argument clears the way for the adoption of
proportionality in Australia. However, it is also argued that the positive case for its adoption is
inconclusive. Proportionality promises an increase in transparency by isolating the balancing
element of the analysis. However, it is unclear how much difference this somewhat minor
adjustment will make in practice and those advantages must, in any event, be measured against
the cost of distraction and confusion created by doctrinal innovation. Finally, the article
addresses ‘calibrated scrutiny’, Gageler J’s preferred form of analysis. It is argued that this
approach offers some advantages. However, it need not be seen as an alternative to the pro-
portionality method. On the contrary, the two approaches could be reconciled and a form of
proportionality used as a manner for better development of the law.
* Redmond Barry Distinguished Professor and Kathleen Fitzpatrick Australian Laureate Fellow, Melbourne Law School.
Research for this article was supported by the Australian Research Council pursuant to Professor Stone’s Australian
Laureate Fellowship (FL160100126). Thanks are due to Shawn Rajanayagam for research assistance; to many colleagues
for their patient participation in conversations and correspondence about proportionality, including Anne Carter, Rosalind
Dixon, Graeme Hill and Stijn Smet; and to participants in the various forums at which this was presented, including the 2017
Centre for Comparative Constitutional Law Conference at Melbourne Law School, the Legal Issues Seminar of the
Queensland Bar Association and the TC Beirne School of Law, the New South Wales Bar Association 2018 Maurice
Byers Lecture, the 2018 Comparative Constitutional Law Roundtable at the University of New South Wales and the
2019 Zines Symposium at the Australian National University. The author may be contacted at a.stone@unimelb.edu.au.
124
Federal Law Review 48(1)
I Introduction
Since 2015, the place of proportionality analysis has been a central controversy in Australian
constitutional law.1 In McCloy v New South Wales (‘McCloy’),2 the High Court, by majority of
four to three, adopted ‘proportionality’ as an element of its test for determining whether a law
infringes the implied freedom of political communication. The adoption of proportionality analysis
has since been confirmed on several occasions3 and following the High Court’s decisions in Clubb
v Edwards (‘Clubb’)4 and Comcare v Banerji (‘Banerji’)5 its place in constitutional law is surely
settled for the moment. Nonetheless, some deep divisions remain, with Gageler J and Gordon J
retaining their longstanding opposition to the use of proportionality analysis and articulating ever
more detailed reasons for that opposition.6
To anyone not deeply involved in Australian constitutional law, the controversy might seem
puzzling given the widespread acceptance of proportionality in other legal systems—including
those whose constitutional systems most resemble Australia’s.7 The controversy might even puzzle
observers with some acquaintance with Australian constitutional law given the High Court’s
previous apparent acceptance, 20 years ago, that proportionality analysis was equivalent to the
well-established ‘reasonably appropriate and adapted’ doctrine.8
Thus, even in light of the apparent settling of the doctrine in Clubb and Banerji, the High
Court’s recent encounters with the proportionality doctrine leave questions hanging in the air: if
proportionality analysis is equivalent to well-established aspects of Australian constitutional doc-
trine, what, if anything, is novel about proportionality analysis? If proportionality does introduce
analytical novelty, how should we assess it and respond to it?
1. For some of the academic commentary, see Mark Watts, ‘Reasonably Appropriate and Adapted? Assessing
Proportionality and the “Spectrum” of Scrutiny in McCloy v New South Wales’ (2016) 35(2) University of
Queensland Law Journal 349; Anne Carter, ‘Proportionality in Australian Constitutional Law: Towards
Transnationalism?’ (2016) 76 Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht 951; Anne Carter,
‘Brown v Tasmania: Proportionality and the Reformulation of the Lange Test’ (2018) 29(3) Public Law Review 11;
Shipra Chordia, Proportionality in Australian Constitutional Law (PhD Thesis, The University of New South Wales,
2018); Ingmar Duldig and Jasmyn Tran, ‘Proportionality and Protest: Brown v Tasmania’ (2018) 39(2) Adelaide Law
Review 493.
2. (2015) 257 CLR 178 (‘McCloy’).
3. Brown v Tasmania (2017) 261 CLR 328 (‘Brown’); Clubb v Edwards (2019) 93 ALJR 448 (‘Clubb’). See also Murphy v
Electoral Commissioner (2016) 261 CLR 28 (‘Murphy’).
4. In Clubb, Edelman J adopted proportionality as well, bringing the number of judges who accept proportionality in
principle to five: Clubb (n 3) 462 [6], 470–1 [70]–[74] (Kiefel CJ, Bell and Keane JJ), 506–9 [266]–[275] (Nettle J),
544–6 [461]–[470] (Edelman J).
5. (2019) 93 ALJR 900 (‘Banerji’).
6. The debate between the Justices seems to have abated for the moment at least. In Banerji, proportionality was applied by
a majority (Kiefel CJ, Bell, Keane and Nettle JJ in joint reasons and Edelman J in a concurrence) without any further
discussion of its merits. Equally, and without further debate, Gageler J and Gordon J applied their preferred approaches.
All Justices reached the same result, allowing the appeal.
7. Proportionality is used by courts in interpretation of the Canadian Charter of Rights and Freedoms (R v Oakes [1986] 1
SCR 103), the New Zealand Bill of Rights Act 1990 (NZ) (R v Hansen [2007] 3 NZLR 1) and the Human Rights Act 1998
(UK) (Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700 (‘Bank Mellat’)).
8. Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 567 n 272 (‘Lange’); Mulholland v Australian
Electoral Commission (2004) 220 CLR 181, 195–200 [27]–[40] (Gleeson CJ); Roach v Electoral Commissioner (2007)
233 CLR 162, 199 [85] (‘Roach’).
Stone
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To answer these questions, I consider, in Part III of this article, two possible understandings of
proportionality.9 The first conceives of proportionality as an innovation that implements an approach
significantly different from the prior law. Moreover, it is a highly substantive doctrine that has
embedded within it ideas derived from constitutions with strong conceptions of constitutional rights
as fundamental principles and under which the judicial role is to optimise protection of these rights.
This conception of proportionality would readily give rise to objections to its importation. If the
context from which proportionality is derived is wholly dissimilar to the Australian constitutional
context, proportionality may be an inappropriate and even dangerous development. It might be an
‘exotic jurisprudential pest destructive of the delicate ecology of Australian public law’.10
The second possible understanding of proportionality lies at the opposite end of the spectrum. It
holds that proportionality does not entail commitments to a novel and substantive conception of
rights. Rather, it can be stripped of these commitments and reduced to a method or conceptual tool
according to which judges assess the validity of a law that burdens a constitutional requirement
(which may not be a constitutional ‘right’).
I will argue that this second conception of proportionality severs the link between rights and
proportionality and clears the way for its adoption in Australian constitutional law without con-
cerns about the inadvertent importation of unfamiliar aspects of rights-based constitutionalism. On
the contrary, proportionality so understood is consistent with the nature of the freedom of political
communication as a structural implication. Indeed, on this conception, proportionality is simply an
elaboration of previous law that renders explicit elements of analysis that were already implicit in
the Court’s doctrines. As a result, I argue that proportionality is an available method of analysis
that involves no obvious tension with fundamental aspects of Australian constitutional law.
Whether proportionality is a desirable development, however, is entirely another matter. Among
those who defend the use of proportionality, it is usually positively justified for the transparency it
brings to judicial reasoning and the culture of justification that it therefore promotes. In Part IV, I will
cast doubt on this argument on the grounds that it overestimates the capacity of proportionality to
produce transparency of analysis and justification, at least where compared to dominant alternative
approaches in the High Court. Proportionality may offer a slight increase in transparency over the
‘reasonably appropriate and adapted’...
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