Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference
| DOI | 10.1177/0067205X1704500202 |
| Author | Caroline Henckels |
| Date | 01 June 2017 |
| Published date | 01 June 2017 |
| Subject Matter | Article |
PROPORTIONALITY AND THE SEPARATION OF POWERS
IN CONSTITUTIONAL REVIEW: EXAMINING THE ROLE OF
JUDICIAL DEFERENCE
Caroline Henckels*
ABSTRACT
The High Court’s tentative moves toward adopting structured proportionality as a
method of constitutional review have been hampered by concerns about the separation
of powers. This article argues that the manner in which a court und ertakes
proportionality analysis is crucial to the question of whether it is acting within the
domain of judicial power. In this regard, the concept of judicial deference plays a vital
but thus far under-theorised role. Deference refers not to judicia l submission or
surrender to the legislature, which would abdicate judicial power to a non-judicial body.
Rather, it re fers to a court giving weight to the judgment or opinion of government in
circumstances of normative or empirical uncertainty. Courts afford deference in this way
for two reasons: the desirability of respecting decisions made by democratically
legitimate decision-maker s, and the practical advantages that inhere in relying on the
institutional competence and expertise of the other branches of government. An
increased understanding of these rationales for deference in the context of constitutional
review would diminish concerns about the High Court straying outside the domain of
judicial power. Proportionality and deference exist in a symbiotic relationship and
should be addressed together by a coherent judicial theory; many of the concerns raised
by the High Court about the former would diminish were it also to embrace the latter.
I INTRODUCTION
The High Court has employed a form of proportionality testing as a method of
constitutional review in several discrete areas: the freedoms of political communication,
electoral rights and interstate trade and commerce; in characterising legislation enacted
pursuant to purposive heads of power and incidental to non-purposive heads of power;
and in rela tion to statutory grants of power to make delegated legislation.
1
Yet, its
embrace of the technique has been patchy and far from unanimous. Although in McCloy
* Senior Lecturer, Faculty of Law, Monash University. Thank you to Janina Boughey, Lisa
Burton Crawford, Mel issa Castan, Julie Debeljak, Patrick Emerton, Adam Fletcher,
Triantafyllos Gkouvas, Sarah Joseph, Katie O’Bryan, Oscar Roos, Ronli Sifris, David Tan,
Jamie Walvisch and the anonymous referees. All errors are mine.
1
Sir Anthony Mason, ‘The Use of Proportionality in Australian Constitutional Law’ (2016) 27
Public Law Review 109, 114–15.
182 Federal Law Review Volume 45
_____________________________________________________________________________________
v New South Wales
2
four members of the High Court employed a structured approach to
proportionality analysis that is commonly used in other legal systems, this decision and
the subsequent dec ision in Murphy v Electoral Commissioner
3
leave important que stions
unanswered, and there remains considerable resistance to adopting proportionality as a
method of review among some members of the Court.
This resistance is unsurprising. Ever since the High Court’s fir st foray into
proportionality review, de bate has continued as to its proper r ole in the Australian
context. The concern is that the strict separa tion of federal judicial power required by
the Constitution may prevent judge s from engaging in the evaluative tasks that
proportionality obliges. In particular, the prospect of judges substituting their own
views for those of other br anches of government in relation to the legitimacy and
importance of a challenged law and in relation to factual assessments made by other
branches of government raises significant concerns about the proper boundary of the
judicial role.
This article argues that the manner in which a court a pproaches the analytical tasks
involved in assessing the proportionality of a law is crucial to the question of whether
the court is acting judicially. In this regard, the concept of judicial deference plays a vital
but under-theorised role. Deference refers not to judicial submission or surrender to the
legislature, which would give rise to its own separation of powers problems in the sense
of abdication of judicial power to a non-judicial body. Rather, it refers to a court g iving
weight to the judgment or opinion of another branch of government in circumstances of
uncertainty, be they normative (in relation to value judgments) or empirica l (in relation
to questions of fact). An increased understanding of the ratio nales underpinning
deference in the context of constitutional review—namely, the desirability of respecting
decisions made by democratically legitimate decision -makers and the practical
advantages that inhere in relying on the institutional competence and expertise of the
other branches of government—would diminish concerns about the struc tured
proportionality test.
II THE PATH TO MCCLOY
Numerous domestic, supranational and international courts and tribunal s employ
proportionality analysis as a method of judicial review in a variety of contexts.
4
The
method is generally understood to comprise a three- or four-fold test or set of questions
that a court a pplies cumulatively in reviewing a law or other government action.
5
Briefly, the preliminary stage of the evaluatio n of the legitimacy of the regulatory objective
involves a court determining whether the objective of the law is legitimate, by reference
to the relevant constitution or to prevailing societal values. The criterion of suitability
requires that the law is rationally co nnected to its objective. The necessity stage requires
that in circumstances where more than one alternative provision could achieve the
objective, the option that intrudes the least upon the relevant right or interest should be
2
(2015) 257 CLR 178 (‘McCloy’).
3
(2016) 90 ALJR 1027 (‘Murphy’).
4
See, eg, Alec Stone Sweet and Jud Matthews, ‘Proportionality Balancing and Global
Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72, 73–5, 87–8, 160–1.
5
On the stages of proportionality analysis, see, eg, Aharon Barak, Proportionality: Constitutional
Rights and Their Limitations (Cambridge University Press, 2012) 32–133.
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