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Published online by Cambridge University Press: 01 January 2025
This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.
Thank you to Caitlin Goss, Matthew Groves, Cheryl Saunders, Elizabeth Sheargold, Adrienne Stone and Lael Weis for their comments on an earlier version of this article. I am also grateful to the participants at the Constitutional Scholars’ Day hosted by Melbourne Law School in July 2019, where this article was first presented, and to the two anonymous referees, for their helpful suggestions.
1. For example, in Canada, see R v Oakes [1986] 1 SCR 103, 138–9; in New Zealand, see R v Hansen [2007] 3 NZLR 1, 28, 45–6, 69; and in the United Kingdom, see Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, 771.
2. While the consistency of proportionality with Australia’s common law tradition has been touched upon in the existing scholarship, the objection deserves fuller attention. For some preliminary discussion, see Evelyn Douek, ‘All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia’ (2019) 47(4) Federal Law Review 551, 566–8; Rosalind Dixon, ‘Calibrated Proportionality’ (2020) 48(1) Federal Law Review 92, 98–9, 101; Adrienne Stone, ‘Proportionality and Its Alternatives’ (2020) 48(1) Federal Law Review 123, 139, 152.
3. See below n 23.
4. McCloy v New South Wales (2015) 257 CLR 178 (‘McCloy’).
5. These three steps were elaborated by the Court in McCloy (n 4) 195 [2], 217–19 [79]–[87] (French CJ, Kiefel, Bell and Keane JJ). Note that in McCloy the plurality use the term ‘proportionality testing’, but I have adopted ‘structured proportionality’ to distinguish it from proportionality in a more general sense.
6. McCloy (n 4) 195 [2].
7. Ibid.
8. See below n 154.
9. McCloy (n 4) 200 [23]. The majority’s approach has been described as a ‘re-writing’ of the Lange test: see Anne Twomey, ‘McCloy v New South Wales: Out with US Corruption and in with German Proportionality’ on AUSPUBLAW (15 October 2015) <https://auspublaw.org/2015/10/mccloy-v-new-south-wales/>.
10. See discussion below in Part IV(A). See also Anne Carter, ‘Proportionality in Australian Constitutional Law: Towards Transnationalism’ (2016) 76 Heidelberg Journal of International Law 951, 960–2.
11. For some recent discussions, see Douek (n 2); Shipra Chordia, Proportionality in Australian Constitutional Law (Federation Press, 2020) 162–93.
12. For an overview of some of the questions that remain to be worked out, see Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia (LexisNexis, 4th ed, 2018) [10.251].
13. Murphy v Electoral Commissioner (2016) 261 CLR 28, 53 [39] (French CJ and Bell J) (‘Murphy’). See also 72 [101] (Gageler J), 94 [202] (Keane J), 107 [244] (Nettle J), 122 [297] (Gordon J). It was suggested, for instance, that in the electoral context Parliament was obliged to maintain electoral laws and the proportionality inquiry would invite the Court to rewrite the legislative scheme, which was beyond the limits of the judicial role.
14. See, eg, Anne Carter, ‘Brown v Tasmania: Proportionality and the Reformulation of the Lange Test’ (2018) 29(1) Public Law Review 11; Caroline Henckels, ‘Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference’ (2019) 45(2) Federal Law Review 181; Murray Wesson, ‘Crafting a Concept of Deference for the Implied Freedom of Political Communication’ (2016) 27(2) Public Law Review 87, 101.
15. See, eg, Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23(3) Melbourne University Law Review 668 (‘The Limits of Constitutional Text and Structure’); Adrienne Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28(3) University of New South Wales Law Journal 842; Stone (n 2).
16. As indicated at n 2 above, this question has only been touched on in the existing literature.
17. Commonwealth v Tasmania (1983) 158 CLR 1, 260. See, eg, Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, 576 (Gummow J); Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21(1) Melbourne University Law Review 1, 2.
18. His Honour does not, for instance, cite any European sources or explain the concept by reference to its use in other jurisdictions.
19. At least with respect to purposive heads of power and, more controversially, with respect to incidental powers: George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory (Federation Press, 7th ed, 2018) [18.78]–[18.93].
20. Such as s 92 of the Constitution, the implied freedom of political communication, and electoral rights.
21. For an elaboration of the different tests, see Anne Carter, Proportionality and Facts in Constitutional Adjudication (Hart Publishing, forthcoming) ch 5.
22. See Carter (n 14) 12. In the seminal case of Lange v Australian Broadcasting Corporation, for instance, a unanimous High Court suggested that there was ‘little difference’ between the test of ‘reasonably appropriate and adapted’ and the test of proportionality. It was not necessary, according to the Court, to distinguish between the two concepts. See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567 n 272, 562.
23. See the analysis in Part III(A) below. These criticisms follow a longer line of scepticism about the appropriateness of proportionality testing in the Australian context: see, eg, Leask v Commonwealth (1996) 187 CLR 579, 600–1 (Dawson J); Roach v Electoral Commissioner (2007) 233 CLR 162, 178 [17] (Gleeson CJ); Momcilovic v The Queen (2011) 245 CLR 1, 172–3 [431]–[433] (Heydon J).
24. Note that this article does not address the use of proportionality in assessing the reasonableness of a particular exercise of administrative power, and it may be that the issues present differently in that context. Note also that so far structured proportionality testing has only been applied in the context of the implied freedom of political communication, but that in McCloy there was some hint in the joint judgment that a similar approach may apply in other constitutional contexts: see McCloy (n 4) 195 [3], 210 [57], 219 [87].
25. McCloy (n 4) 235 [142].
26. Ibid 235 [142], [143].
27. Ibid 235 [143].
28. Ibid 236 [145].
29. Ibid 282 [310].
30. Ibid 282 [311].
31. As I explain below, the United States is often held up as the exemplar of ‘categorisation’: see below n 135 and accompanying text.
32. See below Part III(B).
33. As Sir Anthony Mason has observed, the High Court has not endorsed strict ‘categories of tiered scrutiny’, such as those used in the United States, in the Australian context: see Sir Anthony Mason, ‘Proportionality and Calibrated Scrutiny: A Commentary’ (2020) 48(2) Federal Law Review 286, 287.
34. Brown v Tasmania (2017) 261 CLR 328, 378 [164] (citations omitted) (‘Brown’).
35. McCloy (n 4) 239 [153].
36. Tajjour v New South Wales (2014) 254 CLR 508, 580–1 [151], quoted in Brown (n 34) 390 [201].
37. Note that Rosalind Dixon has suggested that ‘structured proportionality’ and ‘calibrated scrutiny’ need not be alternatives, and she proposes a hybrid approach of ‘calibrated proportionality’: Dixon (n 2).
38. McCloy (n 4) 288 [337].
39. Sir Anthony Mason, ‘The Use of Proportionality in Australian Constitutional Law’ (2016) 27(2) Public Law Review 109.
40. Ibid 121.
41. Ibid.
42. Ibid.
43. Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448, 483 [159] (citations omitted) (‘Clubb’).
44. Brown (n 34) 477 [475].
45. Ibid 477 [477].
46. Ibid 477 [476], quoting Murphy (n 13) 73 [109] (Gageler J).
47. Clubb (n 43) 532 [402] (citations omitted).
48. Ibid 532 [404]. See also below nn 61 and 88.
49. Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press, 2012) 178–81; Moshe Cohen-Eliya and Iddo Porat, ‘American Balancing and German Proportionality: The Historical Origins’ (2010) 8(2) International Journal of Constitutional Law 263, 271–5.
50. This phrase is generally considered to have been borrowed from the US case of McCulloch v Maryland, 17 US (4 Wheat) 316 (1819): see Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 199 [39] (Gleeson CJ).
51. Clubb (n 43) 530 [391].
52. Ibid 530 [393].
53. See, eg, McCloy (n 4) 228–9 [119]–[120] (Gageler J).
54. Clubb (n 43) 487 [179], citing Roach v Electoral Commissioner (2007) 233 CLR 162, 178 [17].
55. For some discussion, see Lord Robert Walker, ‘Developing the Common Law: How Far Is Too Far?’ (2013) 37(1) Melbourne University Law Review 232; Lord Goff, ‘The Future of the Common Law’ (1997) 46(4) International and Comparative Law Quarterly 745, 753.
56. McCloy (n 4) 235 [142] (Gageler J); Brown (n 34) 477 [476]–[477] (Gordon J).
57. See Murphy (n 13) 73 [109] (Gageler J); Brown (n 34) 477 [476] (Gordon J).
58. Clubb (n 43) 532 [404]. As I discuss below, Gageler J has suggested the adoption of ‘precedent-based calibrated scrutiny’: see at 484 [161].
59. Brown (n 34) 378 [164] (Gageler J), 477 [477] (Gordon J). See also Clubb (n 43) 483 [159] (Gageler J), 530 [391] (Gordon J).
60. Brown (n 34) 477 [477], citing Mason (n 39) 121.
61. In contrast, note that Gordon J presents proportionality as a rule-based approach: Clubb (n 43) 532 [404].
62. See Frederick Schauer, ‘The Convergence of Rules and Standards’ [2003] (3) New Zealand Law Review 303, 306–7; Stone (n 2) 150–1.
63. Schauer (n 62) 308.
64. This is discussed further below at Part IV(C).
65. McCloy (n 4) 236 [145].
66. Ibid 237 [147]–[148], drawing on the work of Professor Aharon Barak.
67. Mason (n 39) 121.
68. For instance, in Canada, New Zealand and the UK, the advent of proportionality reasoning followed the introduction of constitutional or statutory charters of rights: Canada Act 1982 (UK) ch 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’); New Zealand Bill of Rights Act 1990 (NZ); Human Rights Act 1998 (UK). All three instruments enshrine an express catalogue of rights and, at the same time, provide for limitations to these rights, whether this is expressed as a general limitations clause or in the context of specific rights.
69. This approach is epitomised in the work of Robert Alexy, who conceives of rights as ‘optimization requirements’: Robert Alexy, A Theory of Constitutional Rights (Oxford University Press, 2011) 47, 66–8.
70. See Scott Stephenson, ‘Rights Protection in Australia’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 905.
71. See Stone (n 2) 133.
72. See Adrienne Stone, ‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement’ (2005) 27(1) Sydney Law Review 29.
73. This is returned to below in Part II(B).
74. See above n 69.
75. Stone (n 2) 131–9.
76. For some preview of this vast literature, see, eg, Vicki C Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) 124(8) Yale Law Journal 3094, 3192; Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (Cambridge University Press, 2017); David Kenny, ‘Proportionality and the Inevitability of the Local: A Comparative Localist Analysis of Canada and Ireland’ (2018) 66(3) American Journal of Comparative Law 537.
77. Stone (n 2) 134–5. A similar point is made by Douek (n 2) 562.
78. Stone (n 2) 135.
79. Ibid 140.
80. Ibid 135.
81. See above n 54.
82. For an analysis of the importance of constitutional culture and context in understanding transplants, see Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (Cambridge University Press, 2013).
83. McCloy (n 4) 195–6 [4] (French CJ, Kiefel, Bell and Keane JJ).
84. See, eg, Carter (n 14) 15–16.
85. McCloy (n 4) 195 [2] (French CJ, Kiefel, Bell and Keane JJ). In other jurisdictions, by contrast, the courts tend to conduct a more free-ranging ‘balancing’ of competing constitutional values.
86. Ibid 211 [58].
87. Ibid 235 [142] (Gageler J); Brown (n 34) 477 [476] (Gordon J).
88. See, eg, Brown (n 34) 477 [477] (Gordon J). In contrast, in the broader literature, proportionality is often classed as a flexible ‘standard’: see Stone (n 2) 150.
89. As Douek notes, one of the ‘ironies’ of the debate over proportionality is that it is attacked as being both too rigid and too indeterminate: see Douek (n 2) 566.
90. Thomas Poole, ‘The Reformation of English Administrative Law’ (2009) 68(1) Cambridge Law Journal 142, 146.
91. Anne Carter, ‘Political Donations, Political Communication and the Place of Proportionality Analysis: Case Note on McCloy v New South Wales’ (2015) 26(4) Public Law Review 245, 251.
92. For instance, there is no advisory jurisdiction in Australia.
93. Bernhard Schlink, ‘Proportionality in Constitutional Law: Why Everywhere but Here’ (2011) 22(2) Duke Journal of Comparative and International Law 291, 302. But see also Cohen-Eliya and Porat (n 82) 148–9, who suggest that there are deep epistemological differences between German and common law constitutional culture.
94. See, eg, Alan D P Brady, Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach (Cambridge University Press, 2012) 35.
95. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Tony Weir trans, Clarendon Press, 3rd ed, 1998) 69.
96. For a description of this traditional view, see ibid.
97. Ibid 269.
98. Richard A Posner, ‘Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights’ (1992) 59(1) University of Chicago Law Review 433, 433.
99. As Justice Edelman notes, in constitutional law jurisprudence it has become a ‘term of derision’: Justice James Edelman, ‘Understanding Causation and the Attribution of Responsibility’ (Speech delivered at the Commercial Conference of the Supreme Court of Victoria/University of Melbourne, Banco Court, 7 September 2015) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-edelman/edelman-j-20150907>.
100. McGinty v Western Australia (1996) 186 CLR 140, 232 (McHugh J) (‘McGinty’).
101. Justice Keith Mason, ‘What Is Wrong with Top-Down Legal Reasoning?’ (2004) 78 Australian Law Journal 574, 574.
102. Michael Taggart, ‘“Australian Exceptionalism” in Judicial Review’ (2008) 36(1) Federal Law Review 1, 29.
103. McGinty (n 100) 231 (McHugh J).
104. Though, as others have suggested, whether the implied freedom is in fact sourced only to the text and structure is contested: see Stone, ‘The Limits of Constitutional Text and Structure’ (n 15). See also Mason (n 101) 580.
105. See, eg, in the context of unjust enrichment: Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, 544 [72] (Gummow J).
106. Ibid.
107. Indeed, it is now sometimes observed that we are living in an ‘Age of Statutes’: see Justice Michelle Gordon, ‘Analogical Reasoning by Reference to Statute: What Is the Judicial Function?’ (2019) 42(1) University of New South Wales Law Journal 4, 9, citing Guido Calabresi, A Common Law for the Age of Statues (Harvard University Press, 1982) ch 1.
108. Beverley McLachlin, ‘The Role of the Supreme Court of Canada in Shaping the Common Law’ in Paul Daly (ed), Apex Courts and the Common Law (University of Toronto Press, 2019) 25, 33. See also Zweigert and Kötz (n 95) 268–9.
109. McLachlin describes this as ‘methodological cross-fertilization’: McLachlin (n 108) 35. See also Jackson and Summers, who have made a similar point in terms of the convergence in evidentiary procedures across civil law and common law jurisdictions: John D Jackson and Sarah J Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge University Press, 2012) 6–9.
110. See Carmine Conte, ‘From Only the “Bottom-Up”? Legitimate Forms of Judicial Reasoning in Private Law’ (2015) 35(1) Oxford Journal of Legal Studies 1, 14.
111. Zoë Sinel, ‘The Methods and Madness of Unjust Enrichment’ in Andrew Robertson and Michael Tilbury (eds), Divergences in Private Law (Hart Publishing, 2016) 179, 191. See also McLachlin (n 108) 35.
112. See Mason (n 101) 583–4.
113. Ibid 583. Justice Mason points out that Posner noted his own association with several top-down theories and did not suggest that bottom-up reasoning operates in a vacuum.
114. Keith Mason, ‘Do Top-Down and Bottom-Up Reasoning Ever Meet?’ in Elise Bant and Matthew Harding (eds), Exploring Private Law (Cambridge University Press, 2010) 19, 24.
115. Edelman (n 99).
116. Zweigert and Kötz (n 95) 68–71.
117. See above Part IV(B)(ii).
118. Zweigert and Kötz (n 95) 262–3.
119. Ibid; Donald P Kommers, ‘German Constitutionalism: A Prolegomenon’ (1991) 40 Emory Law Journal 837, 840–5.
120. Brodie v Singleton Shire Council (2001) 206 CLR 512, 591 [203].
121. See above n 107.
122. McCloy (n 4) 217 [78].
123. Bank Mellat v Her Majesty’s Treasury (n 1) 789 [70].
124. McCloy (n 4) 217 [78].
125. Note that prior to the decision in Clubb Edelman J had avoided committing to a position on structured proportionality reasoning.
126. Clubb (n 43) 546 [469].
127. Dixon (n 2) 97–9, 101; Stone (n 2) 140.
128. Clubb (n 43) 546 [470].
129. Dixon (n 2). Note that this is a ‘hybrid’ approach: see above n 37.
130. Dixon (n 2) 97.
131. Ibid.
132. See below n 146.
133. For an overview of this aspect of the common law objection, see above Part III(B)(iii).
134. See above n 61 and accompanying text.
135. For a brief overview, see Paul Yowell, ‘Proportionality in United States Constitutional Law’ in Liora Lazarus, Christopher McCrudden and Nigel Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014) 87, 94–101.
136. The basic approach to s 1 was set out in R v Oakes [1986] 1 SCR 103, 138–9 (Dickson CJ). In later cases, the Court has sought to clarify that s 1 does not involve different standards of justification: see Thomson Newspapers Co v Canada (Attorney General) [1998] 1 SCR 877, 942 [90] (Bastarache J).
137. For some discussion, including of the various factors that influence the standard of review, see Robert J Sharpe and Kent Roach, The Charter of Rights and Freedoms (Irwin Law, 5th ed, 2013) 78–87.
138. Stone (n 2) 152.
139. For some discussion, see Douek (n 2) 567; Schauer (n 62).
140. Tajjour v New South Wales (n 36) 551 [37] (French CJ). See also at 575 [131]–[132] (Crennan, Kiefel and Bell JJ).
141. Carter (n 10) 962.
142. Brown (n 34) 369 [128] (Kiefel CJ, Bell and Keane JJ).
143. Ibid 378 [164] (Gageler J). See also 477 [477] (Gordon J).
144. See above n 41. See also Chordia (n 11) 93-99 who examines ‘tiered review based on categorisation’ as one of the alternatives to structured proportionality.
145. See above n 92 and accompanying text.
146. In other words, over time there may be some convergence between rule-like and standard-like methods of review: see above n 139 and accompanying text.
147. Clubb (n 43) 546 [469]. See also above discussion at Part IV(B)(iii).
148. See above Part III(B)(iii).
149. McCloy (n 4) 216 [74]–[76].
150. For some discussion of ‘legalism’ and the role of values, see Cheryl Saunders and Adrienne Stone, ‘Reference to Foreign Precedents by the Australian High Court: A Matter of Method’ in Tania Groppi and Marie-Claire Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Hart Publishing, 2013) 13, 21; Hanks, Gordon and Hill (n 12) [1.55]–[1.61].
151. Douek (n 2) 568.
152. As Morris and Stone suggest, balancing was previously ‘implicit’: Shireen Morris and Adrienne Stone, ‘Abortion Protests and the Limits of Freedom of Political Communication: Clubb v Edwards; Preston v Avery’ (2018) 40(3) Sydney Law Review 395, 405.
153. Stone, ‘The Limits of Constitutional Text and Structure’ (n 15).
154. In this respect, Adrienne Stone has argued that the ‘proportionality’ and ‘reasonably appropriate and adapted’ tests are ‘conceptually equivalent’: Adrienne Stone, ‘Constitutional Orthodoxy in the United Kingdom and Australia: The Deepening Divide’ (2014) 38(2) Melbourne University Law Review 836, 842 n 26.
155. Jackson (n 76) 3192.
156. See, eg, Paul Craig, ‘The Nature of Reasonableness Review’ (2013) 66(1) Current Legal Problems 131, 150–1.
157. Craig notes that while the word ‘proportionality’ was not used, ‘a range of different words were used in the context of judicial review actions …, including proportionable, proportionability, disproportion and proportionate’: Paul Craig, ‘Proportionality and Judicial Review: A UK Historical Perspective’ in Stefan Vogenauer and Stephen Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Hart Publishing, 2017) 145, 148.
158. Ibid.
159. Clubb (n 43) 508 [271].
160. Ibid.
161. Ibid 508 [272].
162. A C L Davies and J R Williams, ‘Proportionality in English Law’ in Sofia Ranchordás and Boudewijn de Waard (eds), The Judge and the Proportionate Use of Discretion: A Comparative Study (Routledge, 2016) 73, 95–6.
163. Other scholars have begun the task of developing a more detailed account of how such a calibrated approach might work in the Australian context, including identifying context-specific factors and constitutional values: see Dixon (n 2).
164. Saunders and Stone (n 150) 13; Sarah Spottiswood, ‘The Use of Foreign Law by the High Court of Australia’ (2018) 46(2) Federal Law Review 161, 162. I am focusing here on foreign domestic law, rather than international law, as different considerations arise in each context: see Adrienne Stone, ‘Comparativism in Constitutional Interpretation’ [2009] (1) New Zealand Law Review 45, 46.
165. Cheryl Saunders, ‘Judicial Engagement in the High Court of Australia’ (Speech delivered at the High Court of Australia Public Lecture, Canberra, 20 June 2012) 1 <https://cdn.hcourt.gov.au/assets/publications/speeches/lecture-series/Lecture.pdf>.
166. McCloy (n 4) 195 [3] (French CJ, Kiefel, Bell and Keane JJ).
167. Ibid 195–6 [4].
168. See Clubb (n 43) 505 [263] (Nettle J).
169. See Anne Carter, ‘Constitutional Convergence? Some Lessons from Proportionality’ in Mark Elliott, Jason N E Varuhas and Shona Wilson Stark (eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart Publishing, 2018) 373, 378.
170. This reflects a broader trend in the use by courts of comparative law: Christina Lienen, ‘Judicial Constitutional Comparativism at the UK Supreme Court’ (2019) 39(1) Legal Studies 166, 176.