Hostname: page-component-745bb68f8f-b6zl4 Total loading time: 0 Render date: 2025-01-08T16:30:34.029Z Has data issue: false hasContentIssue false
  • English
  • Français

Proportionality and Its Alternatives

Published online by Cambridge University Press:  01 January 2025

Adrienne Stone
Adrienne Stone*
Affiliation:
Melbourne Law School
*
The author may be contacted at a.stone@unimelb.edu.au.
Get access Rights & Permissions [Opens in a new window]

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 fundamental 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 proportionality 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.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 1 , March 2020 , pp. 123 - 153
Copyright
Copyright © 2019 The Author(s)

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

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.

References

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 für ausländisches öffentliches Recht und Völkerrecht 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’).

9. I will not discuss specifically the use of proportionality in administrative law, but see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and for analysis Janina Boughey, ‘The Reasonableness of Proportionality in the Australian Administrative Law Context’ (2015) 43(1) Federal Law Review 59; Justice Susan Kenny, ‘Possibilities for Proportionality in Australian Administrative Law’ (Sir Anthony Mason Lecture, The University of Melbourne, 7 August 2019). On the use of proportionality in the characterisation of Commonwealth legislative power (also beyond the scope of this article), see Sir Anthony Mason, ‘The Use of Proportionality in Australian Constitutional Law’ (2016) 27(2) Public Law Review 10; Leask v Commonwealth (1996) 187 CLR 579 (finding that there is no role for proportionality analysis in the characterisation of a non-purposive power).

10. Murphy (n 3) 52 [37] (French CJ and Bell J).

11. Lange (n 8). On proportionality before Lange, see Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21(1) Melbourne University Law Review 1.

12. Coleman v Power (2004) 220 CLR 1, 50 [92]–[93] (McHugh J), 77–8 [196] (Gummow and Hayne JJ), 82 [211] (Kirby J) (‘Coleman’), modifying Lange (n 8) 567.

13. Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’).

14. For the Canadian approach applying a three-stage proportionality test as a means of applying the requirement in s 1 of the Canadian Charter of Rights and Freedoms that limitations on Charter rights be ‘demonstrably justified in a free and democratic society’, see R v Oakes [1986] 1 SCR 103, 138–40. The three stages of the Canadian test are expressed as follows: ‘First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question…Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”’: at 139 (emphasis in original).

15. Lange (n 8) 567 n 272.

16. McCloy (n 2) 212–18 [66]–[83].

17. Canadian Charter of Rights and Freedoms (n 13).

18. McCloy (n 2) 194–5 [2].

19. Ibid 235–7 [141]–[148] (Gageler J), 288–9 [338]–[339] (Gordon J).

20. Murphy (n 3).

21. The challenge in Murphy concerned the validity of laws affecting the closure of the electoral rolls and which did not strictly involve the freedom of political communication but rather turned directly on the mandate that the Houses of Parliament be ‘directly chosen by the people’: Constitution ss 7, 24. The High Court had previously held in Roach (n 8) that any law burdening the franchise must be justified by a substantial reason, raising the question of whether this test would be replaced or supplemented by proportionality analysis. Of the four judges in the majority in McCloy, only Kiefel J (as she then was) applied proportionality analysis in this case: Murphy (n 3) 61–2 [62]–[65]. French CJ and Bell J thought proportionality to be inappropriate to this particular context, and Keane J found that the law did not burden the relevant constitutional requirement and in any event that proportionality was not applicable in this context: at 53 [38] (French CJ and Bell J), 89–90 [188], 94 [205] (Keane J).

22. Murphy (n 3) 72–4 [101]–[110] (Gageler J), 123–4 [299]–[305] (Gordon J).

23. Brown (n 3) 368–70 [123]–[131] (Kiefel CJ, Bell and Keane JJ), 416–17 [278] (Nettle J).

24. Clarifying that the second step was a test only whether the end pursued by the challenged law was compatible with the constitutionally prescribed system of government and did not also involve a test of the ‘means’ or ‘manner’ in which that end is pursued: ibid 363 [104]; Carter, ‘Brown v Tasmania’ (n 1) 13–14.

25. Clubb (n 3). It remains unclear whether proportionality applies in other contexts, including other aspects of the implication from representative government (including the requirement that burdens on the franchise are supported by a ‘substantial’ justification).

26. McCloy (n 2) 194 [2].

27. Brown (n 3) 364 [104].

28. See also Banerji (n 5) 913–15 [32]–[42] (Kiefel CJ, Bell, Keane and Nettle JJ), 942–5 [192]–[206] (Edelman J).

29. McCloy (n 2) 235 [142].

30. Murphy (n 3) 123 [299] (Gordon J).

31. McCloy (n 2) 234 [140], 235 [142].

32. Murphy (n 3) 122–3 [298] (citations omitted).

33. McCloy (n 2) 236 [145].

34. Ibid 289 [339] (emphasis in original), quoting Roach (n 8) 178–9 [17].

35. Clubb (n 3) 530 [392] (emphasis in original) (citations omitted).

36. Ibid 530 [393].

37. Murphy (n 3) 72 [101].

38. Ibid 72 [103].

39. Brown (n 3) 477 [476], quoting Murphy (n 3) 73–4 [109] (Gageler J). See also Clubb (n 3) 530 [391].

40. McCloy (n 2) 235 [142].

41. Ibid 237 [147], citing Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press, 2012) 542–3 (‘Proportionality’).

42. McCloy (n 2) 237 [148].

43. Ibid 238 [150].

44. See, eg, Brown (n 3) 359–60 [88]–[90] (Kiefel CJ, Bell and Keane JJ), 407 [258] (Nettle J), 430 [313] (Gordon J), 503–4 [558]–[560] (Edelman J); Banerji (n 5) 910 [20] (Kiefel CJ, Bell, Keane and Nettle JJ), 936 [164] (Edelman J).

45. See above n 32.

46. Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25(2) Melbourne University Law Review 374. It is true that the freedom of political communication is a limitation on power that operates vertically against the state only and that it operates to protect certain structures and institutions of government. However, these features are shared by other constitutional protections of free speech, such as the First Amendment to the United States Constitution and s 2(b) of the Canadian Charter of Rights and Freedoms.

47. For non-rights uses in Australian law, see Kirk (n 11).

48. See below n 72.

49. As Arai-Takahashi summarised the position: ‘Since the entry into force of the Maastricht Treaty, Article 5 of the Treaty Establishing the European Economic Community (Treaty of Rome) embodies the principle of proportionality, providing that “[a]ny action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty”. Article 3(b)(1) of the Treaty of Lisbon, amending the Treaty on EU and the EC Treaty, has now reinforced this’: Yutaka Arai-Takahashi, ‘Proportionality’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press, 2013) 446, 448 (citations omitted).

50. Compare for instance the Canadian form of proportionality set out at above n 13. See also Rosalind Dixon, ‘Calibrated Proportionality’ (2020) 48(1) Federal Law Review.

51. See Oxford University Press, Max Planck Encyclopedia of Comparative Constitutional Law (online at 8 October 2019) ‘Proportionality’ [19]–[42]. On proportionality in supranational contexts, see Arai-Takahashi (n 49). <https://oxcon-ouplaw-com.ezp.lib.unimelb.edu.au/view/10.1093/law-mpeccol/law-mpeccol-e38?rskey=3Mkbbz&result=1&prd=MPECCOL>.

52. Ibid. See also Barak, Proportionality (n 41) ch 7.

53. Robert Alexy, A Theory of Constitutional Rights (Julian Rivers trans, Oxford University Press, 2011).

54. Ibid 47.

55. Ibid ch 3; see especially at 66–9.

56. Ibid 67.

57. Robert Alexy, ‘Proportionality and Rationality’ in Vicki C Jackson and Mark Tushnet (eds), Proportionality: New Frontiers, New Challenges (Cambridge University Press, 2013) 13, 16. On some versions, moreover, the connection between rights and proportionality is even stronger than I have just stated. Whereas some views of proportionality contemplate that rights are given equal normative status to other values, others appear to accord rights normative priority: see, eg, Robert Alexy, ‘Discourse Theory and Fundamental Rights’ in Agustín José Menéndez and Erik Oddvar Eriksen (eds), Arguing Fundamental Rights (Springer, 2006) 15, 18. That is, on some versions of proportionality, its point is to optimise the protection of rights as the most fundamental and important constitutional values.

58. Bundesverfassungsgericht [German Constitutional Court], 2 BvG 1, 2/60, 28 February 1961 reported in (1961) 12 BVerfGE 205. English extracts in Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 3rd ed, 2012) 510–13.

59. Bundesverfassungsgericht [German Constitutional Court], 1 BvF 1, 2, 3, 4, 5, 6/74, 25 February 1975 reported in (1975) 39 BVerfGE 1. English extracts in Kommers (n 58) 373ff. See also Dieter Grimm, ‘The Protective Function of the State’ in Georg Nolte (ed), European and US Constitutionalism (Cambridge University Press, 2005) 137.

60. Michaela Hailbronner, ‘Rethinking the Rise of the German Constitutional Court: From Anti-Nazism to Value Formalism’ (2014) 12(3) International Journal of Constitutional Law 626, 638 (citations omitted): ‘Nazism and Communism, the past and present “regimes of evil,” hence helped the Court to develop an expansive reading of fundamental rights and the concept of the Basic Law as an objective order of values’.

61. Adrienne Stone, ‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement’ (2005) 27(1) Sydney Law Review 29 (though the freedom of political communication might be one such doctrine) (‘Australia’s Constitutional Rights’).

62. Elisa Arcioni and Adrienne Stone, ‘The Small Brown Bird: Values and Aspirations in the Australian Constitution’ (2016) 14(1) International Journal of Constitutional Law 60.

63. Nor is it principally directed to advancing the interests or status of an individual, though it may do so incidentally: Lael Weis, ‘McCloy Symposium: Lael Weis on Why Political Communication Isn’t an Individual Right in Australia’, Opinions on High (Blog Post, 19 October 2015) <http://blogs.unimelb.edu.au/opinionsonhigh/2015/10/19/weis-mccloy>.

64. Murphy (n 3) 73–4 [109]–[110], citing Alexy, A Theory of Constitutional Rights (n 53) and Barak, Proportionality (n 41).

65. Robert Alexy, ‘The Absolute and Relative Dimensions of Constitutional Rights’ (2017) 37(1) Oxford Journal of Legal Studies 31, 35. He describes the Australian position as ‘correct’ though he notes that ‘[t]he inclusion of the general right of freedom of speech…would have been a preferable solution’.

66. Stone, ‘Australia’s Constitutional Rights’ (n 61).

67. Legalism is the idea that judges deciding hard questions of constitutional law should do so, as far as they possibly can, by reference only to legal materials and without judgment on matters of value. This doctrine has been a central element of Australian judicial method since its famous invocation by Sir Owen Dixon in his remarks on taking his oath as Chief Justice: see Sir Owen Dixon, ‘Address Upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (Law Book, 1965) 245.

68. In addition to legalism, the Australian constitutional tradition is strongly positivist. That is, it takes law to be the product of lawmaking institutions rather than arising from deep moral principle: Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (Oxford University Press, 2006) 106, 153–4.

69. Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 (rejecting the argument that a common law principle limited the power of a state parliament so that a statute of expropriation must provide for just compensation).

70. Alexy, A Theory of Constitutional Rights (n 53).

71. Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65(1) Cambridge Law Journal 174, 176. Rivers argues for the analytical superiority of the optimising conception for separating the question of limitations on fundamental rights from questions of the courts’ institutional capacity or legitimacy.

72. The adaptability of proportionality to different contexts is widely acknowledged: see, eg, Barak, Proportionality (n 41) 502 (‘Every legal system will give its own weight—reflecting its history and tradition—to its constitutional rights’). Indeed, as Vicki Jackson has pointed out, differences of opinion as to the application of proportionality occur within a legal system as well, because ‘the relative weight of different constitutional values is contestable’: Vicki C Jackson, ‘Constitutional Law in an Age of Proportionality’ (2015) 124(8) Yale Law Journal 3094, 3148 n 250. For comparative analyses of proportionality, see (among a large literature) Kai Möller, ‘Constructing the Proportionality Test: An Emerging Global Conversation’ in Liora Lazarus, Christopher McCrudden and Nigel Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014) 31, especially at 34–7; Dieter Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57(2) University of Toronto Law Journal 383; Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (Cambridge University Press, 2017). For an argument that proportionality is inevitably adapted to local contexts, see 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.

73. This explains the use of proportionality in order to test limits on a structural principle of constitutional law, like s 92’s requirement that ‘trade, commerce and intercourse among the states…shall be absolutely free’: see, eg, Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436. Similarly, it has been used in European law to test whether the directives of Council of the European Union are proportionate to the objectives of the Common Agricultural Policy to secure the free movement of goods: R v Minister for Agriculture, Fisheries and Food; Ex parte Fedesa (C-331/88) [1990] ECR I-4023, 4062–4. See generally, Evelyn Douek, ‘All Out of Proportion: The Ongoing Disagreement About Structured Proportionality in Australia’ (2019) 47(4) Federal Law Review (forthcoming) 17. On its use in World Trade Organization law, see Axel Desmedt, ‘Proportionality in WTO Law’ (2001) 4(3) Journal of International Economic Law 441.

74. Where a constitutional requirement is expressed as absolute or where its limits are expressed with a high degree of specificity, the nature of permissible limits are evident from the formulation of that requirement itself. That is, the extent of permissible limits on the right may be coextensive with its scope. See Barak, Proportionality (n 41) 27, pointing to the prohibition on slavery in the Thirteenth Amendment to the United States Constitution and art I of the German Basic Law (‘Human dignity shall be inviolable’) as instances of absolute rights. I will leave to one side the question of whether absolute rights or specifically qualified rights may be rendered qualified by judicial interpretation, but see Barak, Proportionality (n 41) 31.

75. The question of whether proportionality analysis raises the level of scrutiny previously imposed by the ‘reasonably appropriate and adapted’ formulation should not be confused with the question in English law of whether proportionality scrutiny is equivalent to or stricter than ‘Wednesbury unreasonableness’. (For that debate, see Michael Taggart, ‘Proportionality, Deference, Wednesbury’ [2008] (3) New Zealand Law Review 423 and Jeff King, ‘Proportionality: A Halfway House’ [2010] (2) New Zealand Law Review 327, and the cases cited and discussed therein). The ‘reasonably appropriate and adapted’ formulation previously imposed by Lange requires a scrutiny of the legitimacy of the end, the nature of the means used to pursue it and allows for consideration of alternative means of achieving the same end: see below nn 132–46 and accompanying text. The Wednesbury unreasonableness standard searches for an absence of rationality: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

76. Clubb (n 3) 553 [502].

77. See, eg, Rivers (n 71); Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (Cambridge University Press, 2009) 237; Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 72) 3191.

78. David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach?’ in Liora Lazarus, Christopher McCrudden and Nigel Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing, 2014) 83, 85 (in the context of identifying competing interpretations of necessity).

79. Irwin Toy Ltd v Quebec (A-G) [1989] 1 SCR 927, 994. See also Stephen Gardbaum, ‘A Democratic Defense of Constitutional Balancing’ (2010) 4(1) Law & Ethics of Human Rights 78, 102 (arguing that proportionality analysis should be limited to ‘weeding out [unreasonable decisions]’).

80. McCloy (n 2) 195 [2], 217 [81].

81. McCloy (n 2) 211 [58].

82. Clubb (n 3) 509–10 [277] (emphasis in original). It should be noted that in articulating the test this way, Nettle J revised an even more deferential standard that he had articulated in Brown (n 3) 418 [282]. See Clubb (n 3) 507 [267]–[268]. The intensity of this element of the test is lessened further by the imposition of the burden of identifying alternative means on the plaintiff: Clubb (n 3) 508 [269].

83. See Clubb (n 3) 530 [392].

84. Frederick Schauer, ‘Proportionality and the Question of Weight’ in Grant Huscroft, Bradley W Miller and Grégoire Webber (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014) 173, 177–8.

85. See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 143 (Mason CJ), 234–5 (McHugh J) (‘ACTV’); Banerji (n 5) 917 [54], 925 [97] (Gageler J).

86. Further, having regard to the variability of proportionality, discussed at above nn 73–5 and accompanying text, there is further room for limitation in the name of other interest. Even if it is thought in some circumstances that a higher standard—closer to ‘strict scrutiny’—is required, such intensification of review can be case-specific rather than generally applicable.

87. Douek (n 73).

88. See Clubb (n 3) 550 [497] (Edelman J).

89. See above n 37 and accompanying text.

90. See above n 41 and accompanying text.

91. (2013) 252 CLR 530 (‘Unions NSW [No 1]’).

92. Ibid 560 [60].

93. Ibid 559 [56].

94. Ibid 558 [55].

95. Ibid 579 [140].

96. Ibid 580 [142]–[143].

97. 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.

98. Unions NSW [No 1] (n 91) 560 [60], 561 [64].

99. ACTV (n 85).

100. Ibid 144 (Mason CJ).

101. Ibid 238 (McHugh J).

102. (1997) 189 CLR 579 (‘Levy’).

103. Ibid 614–15 (Toohey and Gummow JJ), 627–8 (McHugh J), 648 (Kirby J).

104. Stone, ‘The Limits of Constitutional Text and Structure’ (n 97) 682.

105. The protesters might have relied on an argument that they would not be in danger when they entered on the site because the shooting of ducks occurred while they were ‘on the wing’ and consequently guns were aimed well above the level of any human intruder. This was put in support of an argument that the regulations were entirely unnecessary, but it might also support an argument that they were overly restrictive: see Levy (n 102) 599 (Brennan CJ).

106. See Levy (n 102) 625 (McHugh J).

107. McCloy (n 2) 200–1 [23].

108. Ibid 212 [66].

109. Jackson ‘Constitutional Law in an Age of Proportionality’ (n 72) 3134–5.

110. 532 US 318 (2001).

111. [2012] 3 SCR 408. In this case, a police officer arrested a driver in the course of a traffic stop for a licence plate infraction, detained the driver in the police car while writing up the infringement ticket, conducted a pat down for safety reasons and in doing so discovered illegal drugs. The Canadian Supreme Court unanimously held that the detention and pat down were unconstitutional.

112. Dixon (n 50): ‘The idea of a law being “appropriate and adapted” suggests both that it should be suitable (ie appropriate) and narrowly tailored (ie adapted) to achieving its purpose. But the test itself does not make clear the two-staged nature of this inquiry’.

113. Levy (n 102) 599 (Brennan CJ), 625 (McHugh J); see also accompanying text.

114. Mattias Kumm, ‘The Idea of Socratic Contestation: The Point of Rights-Based Proportionality Review’ (2010) 4(2) Law and Ethics of Human Rights 141, 158–9. Kumm identifies four ‘pathologies’ that proportionality can assist to dispel. In addition to the two just listed (thoughtless adherence to tradition, convention or preference or acceptance of unfounded governmental claims), he claims that proportionality will respect the limits of public reason (discussed at below nn 125–7 and accompanying text) and exposing the capture of legislatures by special interest groups. For reasons of space only the first three are discussed here.

115. The notion of learning through disciplined questioning and dialogue has been adopted (and adapted to context) in many disciplines, including legal education: see Elizabeth Garrett, ‘Becoming Lawyers: The Role of the Socratic Method in Modern Law Schools’ (1998) 1 Green Bag 2d 199. On the importance of Socratic dialogue in questioning settled ideas, see Centre for the Study of Language and Information, Stanford University, Stanford Encyclopedia of Philosophy (online at 8 October 2019) ‘Plato’s Ethics: An Overview’ <https://plato.stanford.edu/entries/plato-ethics/>.

116. Kumm (n 114) 154–5.

117. As Jackson explains it: ‘two systems of decisionmaking—implicit and even at times unconscious, on the one hand, and explicit and cognitively rational, on the other—work together in forming professional judgments’: Vicki C Jackson, ‘Pockets of Proportionality: Choice and Necessity, Doctrine and Principle’ in Erin F Delaney and Rosalind Dixon (eds), Comparative Judicial Review (Edward Elgar, 2018) 357, 363–6, relying on Dan M Kahan et al, ‘“Ideology” or “Situation Sense”? An Experimental Investigation of Motivated Reasoning and Professional Judgment’ (2016) 164(2) University of Pennsylvania Law Review 349.

118. Jackson, ‘Pockets of Proportionality’ (n 117) 363–4.

119. See, eg, Douek (n 73) 21–2.

120. Vicki C Jackson, ‘Being Proportional About Proportionality’ (2004) 21 Constitutional Commentary 803, 830–4; Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 72) 3142–4; Aharon Barak, ‘Proportionality (2)’ in Michel Rosenfeld and András Sájo (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 734, 749. On the weight of concerns for transparency in constitutional reasoning in Australia, see Adrienne Stone, ‘Michael Coper and the Enduring Appeal of Cole v Whitfield’ in James Stellios (ed), Encounters With Constitutional Interpretation and Legal Education: Essays in Honour of Michael Coper (Federation Press, 2018).

121. It is an element of the High Court’s reasoning in McCloy (n 2) 217 [78], citing Bank Mellat (n 7) 790 [72]–[74] (Lord Reed JSC). Proportionality’s ‘attraction as a heuristic tool’, his Lordship explained, ‘is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit’: Bank Mellat (n 7) 790 [74]. See also Clubb (n 3) 544 [463] (Edelman J) and the discussion in Dixon (n 50).

122. Wojciech Sadurski, ‘Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities’ (2015) 4(3) Global Constitutionalism 396.

123. Kumm (n 114) 157–62. Public reason is usually contrasted with reasons that appeal to ‘comprehensive conception[s] of the good’: John Rawls, Political Liberalism (Columbia University Press, revised ed, 2005) 13. Appeals to controversial religious beliefs or moral or philosophical ideas, for instance, are typically regarded as beyond the limits of public reason.

124. Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 72) 3146.

125. Susan Kiefel, ‘Standards of Review in Constitutional Review of Legislation’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 488, 508.

126. As I have argued in Part III and others have elsewhere: see Douek (n 73).

127. ACTV (n 85) 144–5 (Mason CJ).

128. Ibid 145 (Mason CJ), 237 (McHugh J).

129. Ibid 143 (emphasis added). See also Cunliffe v Commonwealth (1994) 182 CLR 272, 300 (Mason CJ).

130. ACTV (n 85) 146–7.

131. Ibid 174–5 (Deane and Toohey JJ), 238–9 (McHugh J). See also Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104, 131–3 (Mason CJ, Toohey and Gaudron JJ), 178–84 (Deane J).

132. ACTV (n 85) 235.

133. In invoking this latter idea, McHugh J alludes to a conceptual form of reasoning that will be discussed below. For the moment, it is sufficient to note that McHugh J’s reasoning is clear that there is balancing involved.

134. Lange (n 8) 568.

135. Coleman (n 12) can also be pointed to as reasonably transparent as to the very clear contrast between competing conceptions of public discourse on which the decision turns (though there is disagreement among the various Justices as to which should prevail): see Adrienne Stone, ‘“Insult and Emotion, Calumny and Invective”: Twenty Years of Freedom of Political Communication’ (2011) 30(1) University of Queensland Law Journal 79, 84–9.

136. Coleman (n 12) 90 [234] (Kirby J).

137. Lange (n 8).

138. In Banerji (n 5), Gageler and Gordon JJ do not adopt proportionality analysis. Justice Gordon applies the Lange formulation of the test. Justice Gageler develops ‘calibrated scrutiny’: see below nn 147–55 and accompanying text.

139. The risk of confusion may be especially great in relation to the second stage given the somewhat misleading way in which the second element is described as ‘necessity’ when in fact there is considerable scope for legislative judgment as to the appropriate means.

140. Cf Douek (n 73) 10.

141. Ibid.

142. Dixon (n 50).

143. Clubb (n 3) 484 [162].

144. Clubb v Edwards concerned a challenge to provisions of the Public Health and Wellbeing Act 2008 (Vic). Justice Gageler found it unnecessary to determine whether the law challenged in Clubb v Edwards was invalid pursuant to the freedom of political communication: Clubb (n 3) 482–3 [152]–[153].

145. In practical terms, the prohibition would only operate when the premises were open and could be accessed: Clubb (n 3) 485 [169].

146. Ibid 484–5 [164]–[170].

147. Ibid 486 [174].

148. Ibid 488 [184].

149. Ibid 490 [197].

150. Ibid 492–3 [209]–[212].

151. See Vicki C Jackson, ‘Ambivalent Resistance and Comparative Constitutionalism: Opening Up the Conversation on “Proportionality”, Rights and Federalism’ (1999) 1(3) University of Pennsylvania Journal of Constitutional Law 583, 605. For an argument in favour of a relatively rule-like approach as consistent with the underlying reasoning of Lange, see Stone, ‘The Limits of Constitutional Text and Structure’ (n 97).

152. See Stone, ‘The Limits of Constitutional Text and Structure’ (n 97).

153. Ibid 688–9.

154. Pierre Schlag famously drew on United States tort law to illustrate the difference: ‘Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railway crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: The driver must stop and look. Cardozo rejects the rule and instead offers a standard: The driver must act with reasonable caution’: Pierre Schlag, ‘Rules and Standards’ (1985) 33 UCLA Law Review 379, 379 (citations omitted).

155. Douek identifies ‘case sensitive’ adjudication as an ‘inherent commitment of proportionality’: Douek (n 73) 1.

156. See the discussion in Stone, ‘The Limits of Constitutional Text and Structure’ (n 97) 687–91. For an argument that rules can reduce uncertainty in some circumstances, see John Braithwaite, ‘Rules and Principles: A Theory of Legal Certainty’ (2002) 27 Australian Journal of Legal Philosophy 47.

157. See the discussion in Stone, ‘The Limits of Constitutional Text and Structure’ (n 97) 687–91.

158. Consider Holmes’ rule and Cardozo’s standard, discussed at above n 154.

159. Rules that incorporate standard-like elements provide an instance. Consider the Australian adaption of the rule in New York Times Co v Sullivan, 376 US 254 (1964), which imports ‘reasonableness of conduct’ as an element of the defence of qualified privilege: Lange (n 8) 573. Although this doctrine has some rule-like features, the notion of reasonableness will encourage judges to consider the underlying justification for the rule and therefore has a somewhat standard-like character.

160. Highlighted by Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 72).

161. Braithwaite (n 156).

162. See Mark Tushnet, ‘Heller and the Critique of Judgment’ [2008] The Supreme Court Review 61; Mark Tushnet, ‘The First Amendment and Political Risk’ (2012) 4(1) Journal of Legal Analysis 103, discussed in Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 72) 3149–50.

163. Clubb (n 3) 506 [265]. A defender of Gageler J’s approach would no doubt point to the possibility of developing the law in a manner that can account for this problem, perhaps through the articulation of an exception. The capacity for rule-like approaches to respond to the complexity of particular cases through such means has been a feature of this debate for decades. To return to Justice Holmes’ rule and Justice Cardozo’s standard, Schlag writes: ‘Which is the preferable approach? Holmes suggests that the requirements of due care at railroad crossings are clear and, therefore, it is appropriate to crystallize these obligations into a simple rule of law. Cardozo counters with scenarios in which it would be neither wise nor prudent for a driver to stop and look. Holmes might well have answered that Cardozo’s scenarios are exceptions and that exceptions prove the rule. Indeed, Holmes might have parried by suggesting that the definition of a standard of conduct by means of a legal rule is predictable and certain, whereas standards and juries are not. This dispute could go on for quite some time’: Schlag (n 154) 379–80 (citations omitted).

164. Clubb (n 3) 506 [265].

165. Justice Nettle’s approach bears much similarity to the approach of the Supreme Court of Canada, which has resisted identification of doctrinal subcategories: see Thomson Newspapers Co v Canada (A-G) [1998] 1 SCR 877, 939 [87]; Sujit Choudhry, ‘So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis Under the Canadian Charter’s Section 1’ (2006) 34 The Supreme Court Law Review 501, 520–1.

166. See also Jackson, ‘Pockets of Proportionality’ (n 117) 373–6 (arguing that Canadian and US case law suggests that ‘proportionality as a principle sometimes trumps strict application of…formal doctrine’); Barak, ‘Proportionality (2)’ (n 120) 754.

167. Stone, ‘The Limits of Constitutional Text and Structure’ (n 97) 704–5. See also Clubb (n 3) 546 [469] (Edelman J).

168. Dixon (n 50).