The Reception of Structured Proportionality in Australian Constitutional Law
| DOI | 10.1177/0067205X211016581 |
| Published date | 01 September 2021 |
| Author | Murray Wesson |
| Date | 01 September 2021 |
| Subject Matter | Articles |
Article
The Reception of Structured
Proportionality in Australian
Constitutional Law
Murray Wesson*
Abstract
A majority of the High Court has incorporated a test of structured proportionality into its implied
freedom of political communication case law. Structured proportionality developed in the context
of constitutional rights adjudication and requires courts to engage in substantive, values-based
reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is
known for its commitment to legalism and textualism. Against this background, one might think
that the High Court would interpret the elements of structured proportionality so that they
assume a highly distinctive form in Australian constitutional law. However, a close reading of
recent implied freedom of political communication case law demonstrates that generally this is not
the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from
the case law of the Federal German Constitutional Court. However, once a broader comparative
perspective is adopted, it becomes apparent that the High Court’s approach is not unusual,
especially for courts that are new to applying structured proportionality. By adopting structured
proportionality, the High Court may have aligned the implied freedom of political communication
with a global model of constitutional rights enforcement. The Australian constitutional context
may also be less distinctive than is sometimes supposed.
I Introduction
Since 2015, in a series of decisions from McCloy v New South Wales (‘McCloy’)
1
to Comcare v
Banerji (‘Banerji’),
2
a majority of the Australian High Court has incorporated a test of structured
* Senior Lecturer, Law School, University of Western Austra lia. I would like to thank the participants in a panel on
proportionality at the International Society of Public Law conference ‘Public Law in Times of Change?’ held in
Santiago, Chile, from 1 to 3 July 2019 for helpful feedback, as well as the participants in the conference ‘The Past,
Present and Future of Rights’ held at the University of Western Australia on 28 November 2019. I would especially
like to thank Dr Ned Curthoys, Dr Dylan Lino and Professor Sarah Murray. The author may be contacted at murray.
wesson@uwa.edu.au.
1. (2015) 257 CLR 178 (‘McCloy’).
2. (2019) 267 CLR 373 (‘Banerji’).
Federal Law Review
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DOI: 10.1177/0067205X211016581
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2021, Vol. 49(3) 352 –379
Wesson 353
proportionality into its implied freedom of political communication case law. Australian consti-
tutional law is a relative latecomer to structured proportionality, which in the past few decades has
emerged as an ‘overarching principle for constitutional adjudication’ in many jurisdictions around
the world.
3
The arrival of structured proportionality in Australian constitutional law has also been
controversial. On the High Court, Gageler J continues to favour a ‘categorical’ approach influenced
by United States constitutional law, while Gordon J prefers to rely upon the traditional ‘appropriate
and adapted’ standard.
4
The question of which of these approaches is preferable, or whether a
compromise approach can be identified, has generated a steady stream of academic commentary
5
which builds upon an existing body of scholarship in comparative constitutional law.
6
However, now that five judges of the High Court—Kiefel CJ, Bell J, Keane J, Nettle J and
Edelman J—have adopted structured proportionality,
7
the place of the doctrine in Austr alian
constitutional law would seem to be relatively secure, although some uncertainty is created by
the recent retirements of Bell J and Nettle J and the appointments of Steward J and Gleeson J to the
Court. The focus of this article is therefore not on the merits of structured proportionality compared
to the alternative approaches of Gageler J and Gordon J, but rather on the reception of the doctrine
in Australian constitutional law. As Aharon Barak emphasises, every ‘legal system that adopts
proportionality must determine for itself ...how the elements of proportionality are to be satis-
fied’.
8
The question this observation raises is how the High Court is adapting the elements of
structured proportionality to the Australian constitutional context. This enquiry may, in turn, also
throw light on the nature of the Australian constitutional context.
The Australian constitutional context embraces two dimensions of analysis. First, there are
doctrinal considerations. Structured proportionality is strongly associated with constitutional
rights
9
and has migrated from its birthplace in Germany to other jurisdictions as a mechanism for
adjudicating rights claims.
10
However, Australia is unusual amongst liberal democracies in lacking
a federal Bill of Rights.
11
The High Court has repeatedly emphasised that the implied freedom is
3. Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia
Journal of Transnational Law 72, 73.
4. See, most recently, Banerji (n 2), 925 [97] (Gageler J) and 935 [161] (Gordon J).
5. Rosalin d Dixon, ‘Calibrated Proportiona lity’ (2020) 48(1) Federal Law Revie w 92; Evelyn Douek, ‘All Out of
Proportion: The Ongoing Disagreement About Structured Proportionality in Australia’ (2019) 47(4) Federal Law
Review 551; Adrienne Stone, ‘P roportionality and Its Alter natives’ (2020) 48(1) Federal Law Review 123. For
discussion of these articles, see Anne Carter, ‘Bridging the Divide? Proportionality and Calibrated Scrutiny’ (2020)
48(2) Federal Law Review 282; Sir Anthony Mason, ‘Proportionality and Calibrated Scrutiny: A Commentary’ (2020)
48(2) Federal Law Review 286; Carlos Bernal, ‘The Migration of Proportionality to Australia’ (2020) 48(2) Federal
Law Review 288.
6. See, eg, Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (Cambridge University Press,
2013).
7. Clubb v Edwards; Preston v Avery (2019) 267 CLR 171, 199–202 [61]–[74] (Kiefel CJ, Keane and Bell JJ), 264–8
[266]–[275] (Nettle J), 311 [408], 329–34 [461]–[471] (Edelman J) (‘Clubb/Preston’).
8. Aharon Barak, ‘Proportionality (2)’ in Michel Rosenfeld and Andr´asSaj ´o (eds), The Oxford Handbook of Comparative
Constitutional Law (Oxford University Press, 2012) 739, 741. See also McCloy (n 1) 215 [72] (French CJ, Kiefel, Bell
and Keane JJ).
9. The seminal work in this regard is Robert Alexy, A Theory of Constitutional Rights, tr Julian Rivers (Oxford University
Press, 2009).
10. Sweet and Mathews (n 3).
11. Rosalind Dixon argues that at a federal level, Australia has a ‘partial’ Bill of Rights. See ‘An Australian (Partial) Bill of
Rights’ (2016) 14(1) International Journal of Constitutional Law 80.
2Federal Law Review XX(X)
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