The Migration of Proportionality to Australia
| Author | Carlos Bernal |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| DOI | http://doi.org/10.1177/0067205X20906034 |
| publishedBy | Sage Publications, Inc. |
In Focus: Proportionality (responding to papers in issue 48(1))
The Migration of Proportionality
to Australia
Carlos Bernal*
In ‘Proportionality and Its Alternatives’
1
and in ‘Calibrated Proportionality’
2
Adrienne Stone and
Rosalind Dixon, respectively, address core questions surrounding the controversy among the
Judges of the High Court of Australia in McCloy v New South Wales (‘McCloy’),
3
Clubb v
Edwards (‘Clubb’),
4
and Comcare v Banerji (‘Banerji’).
5
First, should a structured proportionality
analysis be incorporated into the Lange v Australian Broadcasting Corporation (‘Lange’)
6
and
Coleman v Power (‘Coleman’)
7
test for determining whether a law infringes the implied freedom
of political communication? Second, is a conception of that analysis, which is used worldwide in
the adjudication of constitutional rights, compatible with Australian constitutional law? And third,
what formulation should that analysis have in the Australian context?
I will refer to those issues, respectively, as the incorporation,thecompatibility, and the for-
mulation issues. The three issues regard a general problem, namely whether the migration of a
conception of a structured proportionality analysis to Australia, in the context of the adjudication
of the implied freedom of political communication, is justified. Stone and Dixon provide a positive
answer to the incorporation and compatibility questions, agreeing that the Australian constitutional
review of cases under the implied freedom of political communication would be improved if the
High Court used a formulation that calibrates proportionality.
In this short comment I will refer to the three stated issues with two purposes: first, explaining
why Stone’s and Dixon’s answers to the first two are correct; and second, making some remarks on
Dixon’s formulation of calibrated proportionality.
*Justice at the Colombian Constitutional Court and Associate Professor at Macquarie Law School, Macquarie Park,
Australia. The author may be contacted at carloslb@corteconstitucional.gov.co.
1.Andrienne Stone, ‘Proportionality and Its Alternatives’ (2020) 48(1) Federal Law Review 123.
2.Rosalind Dixon, ‘Calibrated Proportionality’ (2020) 48(1) Federal Law Review 92.
3.(2015) 257 CLR 178 (‘McCloy’).
4.(2019) 93 ALJR 448 (‘Clubb’).
5.(2019) 93 ALJR 900 (‘Banerji’).
6.(1997) 189 CLR 520, 567 (‘Lange’).
7.(2004) 220 CLR 1, 50 (‘Coleman’).
Federal Law Review
2020, Vol. 48(2) 288–291
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X20906034
journals.sagepub.com/home/flr
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