Proportionality and Its Alternatives

Adrienne Stone*

Table of Contents Proportionality and Its Alternatives ...... 1 Introduction ...... 1 Part I: Proportionality in Australian Constitutional Law ...... 4 ‘Reasonably Appropriate and Adapted’ and ‘Proportionality’ from Lange to McCloy ...... 4 Proportionality from McCloy to Clubb ...... 5 Justices Gageler and Gordon, and Judicial Criticism of Proportionality ...... 6 Part II: Two Conceptions of Proportionality ...... 9 Proportionality and the Optimising of Fundamental Rights ...... 10 Proportionality as a Variable Method for Determining Limits on Power ...... 13 Part III: Proportionality and Its Alternatives ...... 20 The Positive Case for Proportionality ...... 20 Proportionality Compared to Reasonably Appropriate and Adapted Test ...... 24 Proportionality Compared to Calibrated Scrutiny ...... 26 Conclusion ...... 30

Introduction

* Redmond Barry Distinguished Professor and Kathleen Fitzpatrick Australian Laureate Fellow, Melbourne Law School. Research for this article was supported by the Australian Research Council pursuant to my Laureate Fellowship. 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, 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 T C 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.

1

Since 2015, the place of proportionality analysis has been a central controversy in Australian constitutional law.1 In McCloy v New South Wales (‘McCloy’),2 the High Court, by majority of four to three, adopted ‘proportionality’ as an element of its test for determining whether a law infringes the implied freedom of political communication. The adoption of proportionality analysis has since been confirmed on several occasions3 and following the High Court’s decisions in Clubb v Edwards (‘Clubb’)4 and Comcare v Banerji (‘Banerji’)5 its place in constitutional law is surely settled for the moment. Nonetheless, some deep divisions remain, with Gageler J and Gordon J retaining their longstanding opposition to the use of proportionality analysis and articulating ever more detailed reasons for that opposition.6

To anyone not deeply involved in Australian constitutional law, the controversy might seem puzzling given the widespread acceptance of proportionality in other legal systems — including those whose constitutional systems most resemble Australia’s.7 The controversy might even puzzle observers with some acquaintance with Australian constitutional law given the High Court’s previous apparent acceptance, twenty years ago, that proportionality analysis was equivalent to the well-established ‘reasonably appropriate and adapted’ doctrine.8

Thus, even in the light of the apparent settling of the doctrine in Clubb and Banerji, the High Court’s recent encounters with proportionality doctrine leave questions hanging in the air: if proportionality analysis is equivalent to well-established aspects of Australian constitutional doctrine, what, if anything, is novel about proportionality analysis? If proportionality does introduce analytical novelty, how should we assess it and respond to it?

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) 22 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 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 Adelaide Law Review 493.

2 (2015) 257 CLR 178.

3 Brown v Tasmania (2017) 261 CLR 328; Clubb v Edwards (2019) 93 ALJR 448. See also Murphy v Electoral Commissioner (2016) 261 CLR 28.

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.

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 apply 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).

8 Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 567 n 272; 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’).

2

To answer these questions, I consider, in Part II of this article, two possible understandings of proportionality.9 The first conceives of proportionality as an innovation that implements an approach significantly different from the prior law. Moreover, it is a highly substantive doctrine that has embedded within it ideas derived from constitutions with strong conceptions of constitutional rights as fundamental principles and under which the judicial role is to optimise protection of these rights.

This conception of proportionality would readily give rise to objections to its importation. If the context from which proportionality is derived is wholly dissimilar to the Australian constitutional context, proportionality may be an inappropriate and even dangerous development. It might be an ‘exotic jurisprudential pest destructive of the delicate ecology of Australian public law’.10

The second possible understanding of proportionality lies at the opposite end of a spectrum. It holds that proportionality does not entail commitments to a novel and substantive conception of rights. Rather, it can be stripped of these commitments and reduced to a method or conceptual tool according to which judges assess the validity of a law that burdens a constitutional requirement (which may not be a constitutional ‘right’).

I will argue that this second conception of proportionality severs the link between rights and proportionality and clears the way for its adoption in Australian constitutional law without concerns about the inadvertent importation of unfamiliar aspects of rights-based constitutionalism. On the contrary, proportionality so understood is consistent with the nature of the freedom of political communication as a structural implication. Indeed, on this conception, proportionality is simply an elaboration of previous law that renders explicit elements of analysis that were already implicit in the Court’s doctrines. As a result, I argue that proportionality is an available method of analysis that involves no obvious tension with fundamental aspects of Australian constitutional law.

Whether proportionality is a desirable development, however, is entirely another matter. Among those who defend the use of proportionality, it is usually positively justified for the transparency it brings to judicial reasoning and the culture of justification that it therefore promotes. In Part III, I will cast doubt on this argument on the grounds that it overestimates the capacity of proportionality to produce transparency of analysis and justification, at least where compared to dominant alternative approaches in the High Court. Proportionality may offer a slight increase in transparency over the ‘reasonably appropriate and adapted’ formulation but even that is uncertain.

Finally, I argue that proportionality ought to be assessed in comparison also with alternatives other than just the ‘reasonably appropriate and adapted’ formulation expressed in Lange v Australian Broadcasting Corporation (‘Lange’). Prior to the decision in McCloy, the use of ‘reasonably appropriate and adapted’ was sometimes accompanied by the use of more specific ‘rule-like’ doctrines that applied to particular circumstances. This approach has the potential to provide a greater measure of clarity and predictability. In conclusion, it is argued that it is the competing merits of a more rule-like approach to the freedom of political communication that deserves judicial and scholarly attention, rather than the current debate over proportionality and a near-identical alternative.

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 Federal Law Review 59. [Citation to Justice Susan Kenny’s Sir Anthony Mason lecture if available.] 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 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 v Electoral Commissioner (2016) 261 CLR 28, 52 [37] (French CJ and Bell J).

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Part I: Proportionality in Australian Constitutional Law ‘Reasonably Appropriate and Adapted’ and ‘Proportionality’ from Lange to McCloy

The starting point for an analysis of proportionality in Australian constitutional law lies in the High Court’s unanimous decision in Lange. 11 In that case a unanimous High Court set out a test that has provided the basic framework for analysis of the freedom of political communication since. As slightly altered in Coleman v Power, it was expressed as follows:

1. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

2. Secondly, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people?

If the first question is answered “yes” and the second “no”, the law is invalid.12

This test determines the scope and the strength of the freedom of political communication. The first step principally serves to determine the scope of the principle by identifying the phenomenon — political communication — to which the principle applies. The second step identifies the strength of the protection conferred on political communication responding to the fact — evident since the inception of the freedom of political communication — that the freedom is not absolute. In this respect the second step of the Lange test operates like a general limitation clause, such as s 1 of the Canadian Charter Rights and Freedoms. Because such limitation clauses are typically employed through a ‘structured proportionality’ analysis,13 the Lange test inevitably raised a question about the status of this kind of analysis in Australian constitutional law.

For almost two decades, the question appeared to be answered by Lange itself, which treated the second stage of the test — which I will refer to as the ‘reasonably appropriate and adapted test’ — as equivalent to the test of proportionality. In a footnote that immediately followed the passage just quoted, the High Court stated ‘[i]n this context, there is little difference between the test of reasonably appropriate and adapted and the test of proportionality’.14

But, despite the apparent clarity of Lange on this score, in McCloy the Court (by majority) introduced a ‘structured’ proportionality as a separate element of its reasoning. In doing so it broke the second step in

11 Lange (n 8). On proportionality before Lange, see Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 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), modifying Lange (n 8) 567.

13 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).

14 Lange (n 8) 567 n 272. See above n 8.

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the Lange test into two separate inquiries: the first going to the compatibility of the object pursued by challenged law with the maintenance of the constitutionally prescribed system of representative government (‘compatibility testing’) and the second determining if the law was ‘reasonably appropriate and adapted’ to advance that object (‘proportionality testing’).15

Proportionality testing was held to entail a further three-stage test, which was further defined in a way that is clearly influenced by,16 but does not replicate, proportionality analysis as applied in other constitutional systems:

The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test — these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:

suitable — as having a rational connection to the purpose of the provision;

necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.17

Proportionality from McCloy to Clubb

The appearance of proportionality in Australian constitutional law immediately provoked controversy. Justices Gageler and Gordon declined to adopt and apply the test, doubting that proportionality was appropriate to the Australian constitutional context and making a range of more specific criticisms.18 Further doubts emerged in Murphy v Electoral Commissioner (‘Murphy’), in which a majority of the Court declined to apply proportionality in a closely related context19 and in which Gageler J and Gordon J reiterated and expanded upon their criticisms.20

15 McCloy (n 2) 212–18 [66]–[83].

16 See above n 13.

17 McCloy (n 2) 194–5 [2].

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

19 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 10) at 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).

20 Murphy (n 10) 72–4 [101]–[110] (Gageler J), 123–4 [299]–[305] (Gordon J).

5

Nonetheless, in Brown v Tasmania (‘Brown’) a majority of the Court21 reaffirmed and applied proportionality analysis to strike down aspects of the Tasmanian ‘anti-protest’ law, the Workplaces (Protection from Protesters) Act 2014 (Tas), making only a slight modification to the second step of the test.22 Following Brown, as confirmed in Clubb,23 the test for infringement is as follows:

1. Does the law effectively burden the freedom in its terms, operation or effect?24 2. If ‘yes’ to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative government? 3. If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?25

The three-stage proportionality analysis entailed by the third question remains unchanged from its articulation in McCloy.26

Justices Gageler and Gordon, and Judicial Criticism of Proportionality

In a series of judgments, Gageler J and Gordon J have each laid out subtle and complex critiques of proportionality. To understand their Honours’ objections, it is first necessary to examine their understandings of proportionality. Drawing together criticisms from the series of judgments from McCloy to Clubb, their critique arises from an understanding of proportionality as having the following characteristics.

The Characteristics of Proportionality

First, as Gageler J describes it in McCloy, proportionality is a ‘one size fits all’ test ‘to be applied to every law which imposes a legal or practical restriction on political communication irrespective of the subject-matter of the law and no matter how large or small, focussed or incidental, that restriction on political communication might be.27

Second, proportionality consists of a standardised sequence of questions to be addressed in a particular order. The first two — and most especially the second — are characterised as ‘rigid’,28 ‘prescriptive’ and

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

22 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.

23 See above n 4. 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).

24 McCloy (n 2) 194 [2].

25 Brown (n 3) 364 [104].

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

27 McCloy (n 2) 235 [142].

28 Murphy (n 10) 123 [299] (Gordon J).

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‘unqualified’.29 They therefore remove an element of discretion and direct the judge to a certain conclusion. As Gordon J elaborates, pointing to the formulation of the necessity element:

The ‘necessity’ stage of the McCloy test would require a court to inquire as to whether there exists an ‘obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect’ on the franchise. If that inquiry is answered positively, then a law will (not may) be invalid.30

As such, the adoption of proportionality will intensify the level of scrutiny applied to laws burdening the freedom of political communication, thereby requiring greater justification for such laws to be valid.

Finally, Gageler J also makes the point that the last element of proportionality analysis — which requires that a law be ‘adequate in its balance’ — is, in contrast to the earlier steps, too open-ended and not ‘sufficiently focused adequately to reflect the reasons for the implication of the constitutional freedom and adequately to capture considerations relevant to the making of a judicial determination as to whether or not the implied freedom has been infringed’.31

The Fit of Proportionality in Australia

These characteristics of proportionality give rise to two related concerns. The first concern is that the rigidity of analysis will lead to an intensification of scrutiny, which in turn reflects the association in other jurisdictions between proportionality and rights.

This concern explains an important statement made by Gleeson CJ in Roach (and quoted approvingly by Gordon J in McCloy):

There is a danger that uncritical translation of the concept of proportionality from [other] legal context[s] ... to the Australian context could lead to the application in this country of a constitutionally inappropriate standard of judicial review of legislative action. Human rights instruments which declare in general terms a right, such as a right to vote, and then permit legislation in derogation of that right, but only in the case of a legitimate objective pursued by means that are no more than necessary to accomplish that objective, and give a court the power to decide whether a certain derogation is permissible, confer a wider power of judicial review than that ordinarily applied under our Constitution. They create a relationship between legislative and judicial power significantly different from that reflected in the Australian Constitution.32

In Clubb, Gordon J expands on this relying on the work of legal theorist Frederick Schauer to conclude:

it is only when rights are in issue that the language of proportionality is in play. And when rights are ‘on one side of the equation’, there is a presumption in favour of the right or a burden of proof imposed on those who would restrict the right. … [W]hat ‘lurk[s]’ beneath this presumption and burden of proof, and is implicit in any rights-based proportionality analysis, is a ‘structural’ matter — a ‘rule of weight’ — or, really, a rule of disproportionate weight: a rule giving more weight to the right than to competing non-right interests. The structure (and the rule) exists because there is a right.33

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

30 Murphy (n 10) 122–3 [298] (citations omitted).

31 McCloy (n 2) 236 [145].

32 McCloy (n 2) 289 [339] (emphasis in original), quoting Roach (n 8) 178–9 [17].

33 Clubb (n 4) 530 [392] (emphasis in original) (citations omitted).

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The freedom of political communication is, by contrast, ‘not a right’34 and the adoption of proportionality is therefore an inapposite importation of a foreign concept that brings with it an approach ill-suited to the context of determining the requirements of an implication from representative government. In Murphy, Gageler J expressed this form reservation in notably strong terms, writing of proportionality:

What is at best an ill-fitted analytical tool has become the master, and has taken on a life of its own.35

Second, the standardised nature of the questions posed by proportionality (and the structured inquiry that it therefore requires) is said to suppress attention to the details of particular cases. Gageler J made the point in context in Murphy, a case concerning a challenge to a law affecting the closure of electoral rolls:

Left out of [proportionality] analysis, or at least pushed to the bottom (to bob up if at all only at the final stage of balancing), is the important consideration that closure of the Rolls is and has always been a step in the conduct of an election under our national electoral law.36

This concern with a rigid ‘“one size fits all” approach’ is reiterated by Gordon J in Brown, where her Honour held that this approach ‘involves “an abstracted top-down analysis”’ that is inconsistent with the more careful attention to the particulars of a case that characterises common law approach.37

Relatedly, Gageler J argues that this form of reasoning detaches the inquiry from the underlying rationale of the freedom of political communication. As his Honour reminds us, the interpretation and application of the implied freedom, as an implication from representative and responsible government, must reflect that underlying rationale. But because the first two stages of the analysis are ‘standardised’ and ‘unqualified’, they apply in the same way to all laws burdening political communication; judges are therefore unable to take account of the particulars of the case such as the degree or scope of the restriction on political communication.38 This form of analysis therefore does not allow for a proper assessment of how the law affects the ‘constitutionally prescribed’ system of representative and responsible government that gives rise to the doctrine.

It is possible, Gageler J concedes, that the final step of proportionality analysis could be developed in a manner that responds to the particulars of cases. He notes Aharon Barak’s recommendation that the third stage of proportionality analysis could be developed through a series of more specific formulas that reflect the principle underlying the protected right.39 Justice Gageler concludes that:

Were such element of balancing as might be incorporated into the Lange analysis to be formulated in terms of ‘principled balancing’, along the lines Professor Barak has advocated, it would go some way to alleviating the concern.40

34 Ibid 530 [393].

35 Murphy (n 10) 72 [101].

36 Ibid 72 [103].

37 Brown (n 3) 477 [476], quoting Murphy (n 10) 73–4 [109] (Gageler J). See also Clubb (n 4) 530 [391].

38 McCloy (n 2) 235 [142].

39 McCloy (n 2) 237 [147], citing Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press, 2012) 542–3.

40 McCloy (n 2) 237 [148].

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However, this modification only underlines the problem with the first two stages. Justice Gageler therefore held:

In my view, it is imperative that the entirety of the Lange analysis is undertaken in a manner which cleaves to the reasons for the implication of the constitutional freedom which it is the sole function of the Lange analysis to protect.41

To sum up this critique of proportionality: it is a rigid doctrine to be applied in all cases and without proper attention either to the facts of particular cases or the underlying rationale of the freedom. This form of analysis increases the level of scrutiny applied to laws burdening political communication in a manner that might be appropriate to constitutional rights but is not appropriate for the implementation of a structural implication.

Part II: Two Conceptions of Proportionality

The criticisms just described depend on claims about how proportionality operates. At their nub is the apparent association between constitutional ‘rights’ and proportionality analysis. One way to address this line of argument would be to address the claim, frequently repeated by members of the High Court, that the freedom of political communication is ‘not a right’ or ‘not a personal right’.42 Although Gordon J explicitly rejects proportionality on this basis,43 it is never entirely clear precisely what is meant by this proposition. Elsewhere I have considered — and rejected — three possible bases for distinguishing the freedom of political communication from a ‘right’.44 Another way to respond to the argument would be to be point to the ‘non-rights’ contexts45 in which proportionality is deployed, such as its origins in German administrative law or its use in European Union law, notably to test the limits of free trade principles46 and then as a general principle — now codified as a treaty provision47 — that tests the validity of EU institutions for compatibility with EU law.

However, I put those arguments to one side for the moment. The formulation of proportionality adopted

41 Ibid 238 [150].

42 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).

43 See above n 32.

44 Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 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.

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

46 See below n 71.

47 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).

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by the Australian High Court does resemble forms of proportionality used in the context of constitutional rights.48 Therefore, it is important to consider whether a form of proportionality heavily influenced by the rights context is — as Justice Gordon would have it — necessarily inappropriate to the Australian constitutional context.

To do this, some preliminary remarks about proportionality are in order. As is very well known, proportionality is a principle with extraordinary global reach. It is found in constitutional law throughout Europe, North and Latin America, Africa and Asia, including in Germany, Canada, South Africa, Israel, and India, to name just a few leading jurisdictions. It is also used by supranational courts, including the European Court of Justice, the European Court of Justice and the Inter-American Court of Human Rights.49 Indeed, the spread of proportionality is perhaps the most remarkable illustration of global constitutionalism. Among these forms of proportionality perhaps the most influential version has been expounded by the Federal Constitutional Court of Germany (Bundesverfassungsgericht) in its application of the German Basic Law. Indeed, the global phenomenon of proportionality analysis is largely attributable to the extended influence of the German Court.50 Moreover, it is an important starting point for my argument because, on the surface at least, the German approach to proportionality makes out the claim of the Australian critics of the doctrine. The German Court’s approach to proportionality is intimately connected a conception of rights that is rather foreign to Australian constitutional law.

Proportionality and the Optimising of Fundamental Rights

The German Court’s most influential and authoritative expositor is Robert Alexy, whose seminal work is founded on the premise that constitutional rights give effect to universal moral principles.51 On his analysis, constitutional rights give expression to these principles and are therefore to be conceived of as ‘optimization requirements’.52 That is, the task of constitutional law is to give rights the fullest expression possible consistent with the legal and factual circumstances. The task of proportionality in this scheme is to realise the optimal force of constitutional rights. (Indeed, Alexy takes the view that proportionality is the only way that this optimisation can be achieved).53

Proportionality optimises rights in two ways. The first two steps of proportionality direct the judge to consider how to optimise proportionality relative to what Alexy calls the ‘factual possibilities’.54 That is, it directs the judge to consider whether any of the costs imposed by the challenged law are avoidable. The third stage proceeds on the basis that the realisation of one principle might incur costs to another: therefore, some costs are unavoidable and the balancing aspect of proportionality directs the judge to consider whether the imposition on the rights is justifying by the importance of satisfying a competing concern.55

48 Compare for instance the Canadian form of proportionality set out at above n 13. See also Rosalind Dixon, ‘Calibrated Proportionality’ [citation to be inserted].

49 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 47).

50 Ibid. See also Barak, Proportionality (n 39) ch 7.

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

52 Ibid 47.

53 Ibid ch 3; see especially at 66–9.

54 Ibid 67.

55 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 on some views of proportionality contemplate that rights are given equal normative status to other values, others 10

The conception of rights are optimising requirements bears an undeniable relationship to the idea, first expounded by the German Court in its famous decision in Lüth, that the German Basic Law gives rise to an ‘objective order of values’. That is, the rights to which the Basic Law gives effect are not — as in the tradition of political liberalism — limitations on the power of the State. Rather they are values that the State has an obligation to realise. In turn, this idea means, among other things, that the Basic Law may require the state to provide the institutional structures for the realisation of the right56 or it may impose a positive obligation on the State to protect the individual.57 The idea of an objective order of values has been a critical element in the German Court’s development of a distinctive form of constitutionalism partly driven by the objective of transitioning Germany to a more liberal state following the Nazi era and protecting it from non-democratic forces.58

These ideas — as expounded by the German Court and further developed by Alexy — have given rise to an enormous and complex literature. But for the purposes of this argument, even a relatively brief account suffices, because it is immediately evident that this conception of rights is foreign to Australian constitutionalism. Indeed, Australia is several steps removed from this conception of rights. There is very little in the Australian Constitution that might qualify even as a right in its liberal conception as a limitation on the state59 and there is nothing that supports the conception of the Australian Constitution as directed to the kind of transformative project at the heart of German constitutionalism.60

It is entirely implausible, therefore, to suppose that any doctrine of Australian constitutional law has the same kind of normative status as rights derived from fundamental moral principles that give effect to an objective order of values. In particular, the requirement that the Houses of Parliament be ‘directly chosen by the people’, though a profound and important statement, does not have this character. It arises from and is contingent upon provisions of the Constitution like ss 7 and 24. The Court’s task is to enforce rather than to optimise this requirement, for, at least on an orthodox understanding of Australian constitutionalism, this requirement does not rise to the level of a fundamental moral principle.61

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.

56 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.

57 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 56) 373ff. See also Dieter Grimm, ‘The Protective Function of the State’ in Georg Nolte (ed), European and US Constitutionalism (Cambridge University Press, 2005) 137.

58 Michaela Hailbronner, ‘Rethinking the Rise of the German Constitutional Court: From Anti-Nazism to Value Formalism’ (2014) 12 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.’

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

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

61 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 11

Thus Gageler J concludes his reasons for rejecting proportionality in Murphy:

Under the guise of inviting the Court to assess the rationality of the [challenged law], to examine the availability of less restrictive alternative means of achieving its purpose, and to weigh the adequacy of its balance, the plaintiffs would have had the Court engage in a process of electoral reform…by redesigning the legislative scheme to adopt what the plaintiffs put forward currently to be best electoral practice.

To seek to compel such a result by those means might be all well and good in a constitutional system in which a function of the judiciary is understood to be the enhancement of political outcomes in order to achieve some notion of Pareto-optimality. That is not our system.62

There is another equally fundamental point of departure. Alexy’s analysis is explicitly non-positivist. That is, on his account human rights find their legal authority not just in the Basic Law but in their status are fundamental moral principles. They therefore exist (and should be recognised as constitutional principles) independently of their explicit inclusion in constitutional text. Indeed, specifically addressing the Australian Constitution, Alexy justifies the freedom of political communication on these grounds.63

Australian constitutionalists, however, have never accepted that constitutional rights can be derived from unexpressed fundamental principles.64 On the contrary, and in keeping with its widely acknowledged legalism65 and positivism,66 the High Court has steadfastly (and in accordance with Australian traditions of legalism) rejected the idea that, for instance, deep rights of this kind are identifiable in the common law.67 The freedom of political communication is justified only because of (and to the extent that) it follows as an implication from the Constitution. So, if proportionality reflects an idea of rights as fundamental moral principles, giving effect to an ‘objective order of values’ irrespective of the expression of those principles in positive law, then its application in Australian constitutional law is an entirely novel and potentially

Right in Australia’, Opinions on High (Blog Post, 19 October 2015) .

62 Murphy (n 3) 73–4 [109]–[110], citing Alexy, A Theory of Constitutional Rights (n Error! Bookmark not defined.) and Barak, Proportionality (n 39).

63 Robert Alexy, ‘The Absolute and Relative Dimensions of Constitutional Rights’ (2017) 37 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’.

64 Stone, ‘Australia’s Constitutional Rights’ (n 59).

65 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 (Lawbook, 1965) 245.

66 In addition to legalism, the Australian constitutional tradition is strongly positivist. That is, it takes law to be the product of law-making 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.

67 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 an statute of expropriation must provide for just compensation).

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transformative idea both in method and substance.

Proportionality as a Variable Method for Determining Limits on Power

This reading of proportionality, however, is not the only way to understand the doctrine. Proportionality has been incorporated into the constitutional law of more traditionally liberal states apparently without transforming their constitutions to align with a German conception of an objective order of values. Indeed, Julian Rivers, author of the leading English translation of Alexy,68 has distinguished between a European ‘optimising’ conception of proportionality and a British ‘state-limiting conception’:

The optimising conception sees proportionality as a structured approach to balancing fundamental rights with other rights and interests in the best possible way. The state-limiting conception sees proportionality as a set of tests warranting judicial interference to protect rights.69

Recognising that proportionality can be directed towards the question of legitimate state interference with rights opens the way for a much different conception of proportionality. On this conception, proportionality entails nothing particular by way of commitment to the idea of a fundamental right. On the contrary, it is a mere method or tool of analysis that can be used in different ways.70 This view of proportionality would reduce the test to its conceptual elements. That is, it would be seen as comprising:

1. A low-threshold test of whether the challenged law pursues the end to which it is directed (suitability); 2. A test of the connection between the end pursued by the challenged law and the means used to pursue it by considering the availability of alternative means of pursuing that end (necessity); and 3. An ‘all things considered’ balancing of the cost incurred to a protected constitutional requirement as against the gain in the achievement of the end pursued by the challenged law (balancing).

Severing the Link between Proportionality and Rights

Perhaps the most significant consequence of this understanding of proportionality is that it would allow for the severance of the link between proportionality and rights. There is nothing in the proportionality method as I have just described it that would limit its application to a right in the ‘thick’ Alexian sense71 or

68 Alexy (n Error! Bookmark not defined.).

69 Julian Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 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 a questions of the courts’ institutional capacity or legitimacy.

70 The adaptability of proportionality to different contexts is widely acknowledged: see, eg, Barak, Proportionality (n 39) 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 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 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 American Journal of Comparative Law 537.

71 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 13

indeed in any other sense. On this conception, proportionality is an available tool whenever the following preconditions are met:

1. First a constitution protects some requirement that limits the power of the state; 2. The requirement is not absolute or is specified in at least somewhat general terms,72 leaving to the judiciary of determining the extent to which burdens on that requirement are permissible; and 3. The importance of that requirement justifies the strength of the protection conferred by proportionality.

Proportionality, therefore, can be conceived of as a method of analysis that allows courts to determine limits of generally expressed constitutional requirements. The question in Australian constitutional law then becomes whether proportionality is appropriate, having regard to the nature of the freedom of political communication, including its status as a limitation on power derived from structures of government.

Proportionality and Level of Scrutiny

To answer this question, we first need a clearer conception of the level of scrutiny imposed by proportionality. As we have seen, Justice Gordon in particular appears to regard proportionality as intensifying the level of scrutiny imposed under the previous reasonably appropriate and adapted standard to a level not appropriate for the freedom of political communication.

There are a number of reasons, however, to question this conclusion.73 First as Edelman J observed in Clubb, the intensity of scrutiny imposed by proportionality can vary in the hands of the judge applying it, either as between jurisdictions or from case to case within a jurisdiction.74 Indeed, the variable intensity with which proportionality can be applied is one of the more commonly remarked upon features of the

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) 43 Federal Law Review (forthcoming) 17. On its use in World Trade Organization law, see Axel Desmet, ‘Proportionality in WTO Law’ (2001) 4 Journal of International Economic Law 441.

72 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 co-extensive with its scope. See Barak, Proportionality (n 39) 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 39) 31.

73 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] New Zealand Law Review 423 and Jeff King, ‘Proportionality: A Halfway House’ [2010] 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 129–143 and accompanying text. Wednesbury unreasonableness standard searches for an absence of rationality: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

74 Clubb (n 3) 553 [502].

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test.75

Second, in the Australian case there are reasons to think that the intensity of scrutiny is less than might be imposed in other circumstances. The second stage of the test will be critical here. If it is understood by reference only to its label (‘necessity’), the second stage of the test might be quite demanding. David Bilchitz has identified a ‘strict formulation of necessity’ which ‘means that no other alternative must be available that can equally realise the purpose and be less invasive of the right in question’.76 Certainly, proportionality in this form would seem to raise the level of scrutiny formerly imposed by the ‘reasonably appropriate and adapted’ standard.

However, other versions of the necessity analysis are quite different. For instance, the Canadian Supreme Court’s approach requires only that there be a ‘reasonable basis’ for a legislative judgment that a law is ‘necessary’ and stresses the importance of a measure of deference to legislative judgment in this regard.77 If it is thought that proportionality in this latter form is more appropriate for Australian constitutional law, the formulation ‘obvious and compelling’78 leaves plenty of room open for such an approach to be developed. Indeed, as explained in the joint reasons of French CJ, Kiefel, Bell and Keane JJ in McCloy that qualification is there to ensure that courts do not ‘exceed their constitutional competence by substituting their own legislative judgments for those of parliaments’.79

Justice Nettle’s reasons in Clubb elaborate the point further. His Honour stressed that the mere availability of a less restrictive and equally practicable alternative is not sufficient to demonstrate an absence of ‘necessity’:

The means chosen by Parliament to achieve a legitimate purpose consistent with the system of representative and responsible government are not to be considered unnecessary just because the court might think that there is another way of achieving the same objective with arguably less impact on the implied freedom of communication. A law may be adjudged unnecessary in the relevant sense if there is an obvious and compelling alternative of significantly lesser burden on the implied freedom that is equally practicable and available.80

Therefore, although proportionality could in some judicial hands intensify the level of scrutiny imposed on challenged laws, it need not and in the specifically Australian form developed in McCloy, it appears, does not do so.

It may be that, as Gordon J held in Clubb, proportionality entails something of a presumption in favour of

75 See, eg, Rivers (n 69); Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) 237; Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 70) 3191.

76 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).

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

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

79 McCloy (n 2) 211 [58].

80 Clubb (n 2) 509 [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) 328 [282]. See Clubb (n 2) 507 [267]–[268]. The intensity of this element of test is lessened further by the imposition of the burden of identifying alternative means on the plaintiff: Clubb (n 2) 508 [269].

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that which it protects.81 Proportionality approaches should to be distinguished from mere ‘ad hoc’ balancing, which would undertake a weighing of competing values or interests or values without any prior judgment granting one or the other a presumption in favour of validity.82 By requiring that a measure burdening freedom of political communication (or other constitutional guarantee) meet the requirements of suitability, ‘necessity’ as well as an all-things-considered balancing analysis, proportionality raises the standard of justification required above mere balancing. However, the weight of proportionality is far from overriding. By way of comparison, consider the requirement known as ‘strict scrutiny’, which would require ‘narrow tailoring’ towards a ‘compelling justification’, a standard that, although never adopted in the particularly strong form seen in the United States, has nonetheless occasionally influenced approaches to the freedom of political communication.83 At least on its face, proportionality is a potentially more deferential standard of review.84

The question, then, is whether that level of scrutiny can be justified within the logic of the Constitution. Seen in this light, an answer readily suggests itself. As a requirement of the constitutional structure freedom of political communication is surely entitled to some (even if slight) presumptive weight. Indeed, there is a case, eloquently put by evelyn douek, that the freedom of political communication requires proportionality precisely because it is derived from the requirement that the Houses of Parliament be ‘directly chosen by the people’, a fundamental element of the constitutional structure.85

To summarise, understanding proportionality as a flexible and variable method for determining limits on state power to burden constitutional requirements opens the way for its incorporation into Australian constitutional law. Moreover, the High Court appears to be developing proportionality in a manner that retains rather than increases the level of scrutiny it previously applied. These features of proportionality put paid to criticism based on the intensification of judicial scrutiny and they also deal with the suggestion that proportionality analysis is necessarily rigid. Precisely because proportionality is variable in its intensity, proportionality need not remove the element of judgment that was previously evident in the Lange test. On the contrary, under proportionality it is for the judge to determine whether, in all the circumstances, an available alternative means should have been preferred in light of the nature of those alternatives and the deference due to legislative judgment. Similarly, the balancing element of the test might be applied in a way that allows for the protected constitutional requirement to be subject to quite high costs before invalidity is found, or it could be applied more strictly so that invalidity follows from relatively minor costs.86

Addressing the Connection to Common Law Method and Underlying Rationale

Finally, once proportionality is understood in this variable and state-limiting form, it becomes apparent that proportionality analysis can be sensitive to the facts of particular cases and the underlying rationale of the freedom of political communication.

81 See Clubb (n 4) 530 [392].

82 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.

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

84 Further, having regard to the variability of proportionality, discussed at above nn 72–74 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.

85 douek (n 71).

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

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Consider Gageler J’s concern in Murphy that the relevance of long-established practices concerning the closure of the rolls before an election would be excluded by proportionality, at least until the final balancing stage.87 The methodological conception of proportionality allows this matter to be considered at the second (necessity) stage if not earlier. That is, if we accept the large measure of judgment inherent in the idea of an ‘obvious and compelling alternative’ then the judgment required by this limb is far from mechanical and certainly does not exclude consideration of a matter like the long history regarding the closure of the rolls. Such a practice may well inform a determination of what constitutes an ‘obvious and compelling alternative’.

This kind of flexibility also provides the answer to the worry that proportionality analysis necessarily disconnects judicial reasoning from the underlying justification for the freedom of political communication. As seen, Gageler J accepts that the third stage of the proportionality analysis could be developed in a manner informed by the underlying justification of the freedom of political communication.88 Once proportionality is understood as a flexible method, this technique can be extended to other elements of the rule.

The necessity element is moderated by the concept of ‘obvious and compelling alternative’, which entails a judgment that in turn opens the way for consideration of the rationale for the freedom of political communication, namely the protection of representative and responsible government as manifest in the text and structure of the Constitution. Indeed, there is no reason in principle that considerations of this kind could not be relevant at the suitability stage. Unions NSW v New South Wales (‘Unions NSW [No 1]’) provides an instance of laws that were held invalid in this manner.89 One of the provisions challenged in that case, s 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW), prevented the receipt of political donations from persons who were not enrolled to vote in local, state or federal elections. Although the Court accepted that the challenged law was in its general scheme directed towards the legitimate end of preventing corruption or undue influence on the political process or the appearance of corruption or undue influence, the Court could see no way that the exclusion of non-electors from the making of political donations advanced those purposes.90 In relation to corporations (who are included within the scope of s 96D), the joint reasons observe that many of those excluded by s 96D ‘may have a legitimate interest in political matters’.91 The joint reasons continue that even if there are reasons to have special concern about the role of corporations in financing campaigns, as New South Wales argued, s 96D was not limited to corporations, nor did it explain why a complete prohibition was appropriate.92 Thus the law was held invalid in terms that could easily now be expressed within the framework of proportionality as a failure to demonstrate that the law had a ‘rational connection’ to its purpose.

Critically, the finding shows the influence of the underlying rationale of the freedom of political communication. Justice Keane’s concurrence demonstrates this feature of the reasoning clearly. As he reminds us, the rationale for the freedom of political communication means that its purpose is not to ensure that any particular persons or class of persons are able to engage in political communication but rather to ensure that all relevant communication is protected.93 Communication on matters relevant to the operation of representative government may well come from non-electors.94 Thus it is the rationale for the freedom

87 See above n 36 and accompanying text.

88 See above n 40 and accompanying text.

89 (2013) 252 CLR 530.

90 Ibid 560 [60].

91 Ibid 559 [56].

92 Ibid 558 [55].

93 Ibid 579 [140].

94 Ibid 580 [142]–[143].

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of political communication that demonstrates the absence of a rational connection. Proportionality analysis therefore can be applied in a manner that is highly attentive to underlying facts and is, at every stage, informed by the underlying rationale of the freedom of political communication.

Proportionality as an Elaboration and Not an Innovation

The view that proportionality is compatible with the freedom of political communication is further supported by the argument I have also made elsewhere95 that the structured form of proportionality is the near-equivalent of the previous formulation ‘reasonably appropriate and adapted’. If structured proportionality essentially elaborates upon the previous approach there is little reason to fear its application now will entail a presumption in favour of freedom of political communication that was not previously an element of the analysis. Let me revisit that argument briefly.

Suitability and Necessity before McCloy

Turning to previous cases, it is fairly easy to demonstrate the presence of the ‘suitability’ element in the prior law. Consider the electoral funding laws challenged (and struck down) in Unions NSW [No 1]. These laws failed at the suitability step. The Court identified a purpose for the law — the prevention of corruption and undue influence in the New South Wales electoral system — but the challenged laws (which prevented the receipt of political donations from persons who were not electors and aggregated the electoral expenditure incurred by a party with ‘affiliated organisations’ for the purposes of determining the application of the expenditure caps) were found not to be rationally related to that purpose.96

It is also relatively easy to show how ‘necessity’ was part of the law before the adoption of structured proportionality in McCloy. Australian Capital Television Pty Ltd v Commonwealth (‘ACTV’), the first freedom of political communication case, itself turned on the question of whether the means employed by the challenged law were justified.97 That is, the ban on political advertising was found to be directed to a legitimate end (the prevention of corruption and undue influence on the political process)98 but the legislative scheme involved the allocation of ‘free time’ (publicly funded broadcasting time) to political parties and candidates in a manner that favoured incumbents and established political parties. There were, it was held, other, ‘less drastic’99 means of achieving the same end. In other words, the means used were unduly or unnecessarily restrictive of political communication, having regard to the available alternatives.

By way of an additional illustration, consider Levy v Victoria (‘Levy’), where the Court reviewed Victorian regulations that limited access to hunting areas during a specified weekend.100 The Court identified the end served by the law — protester safety — and then considered the proportionality of the measure chosen to pursue to that end. Part of that inquiry involved a consideration of the availability of less drastic means to protect the protesters. Although it was rejected, one argument put to the Court was that the protection of protesters could have been secured without the complete exclusion of protesters from the hunting areas. In other words, the Court considered — and rejected — the argument that alternative means were available,

95 Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668.

96 Unions NSW (No 1) (n 89) 560 [60], 561 [64].

97 ACTV (n 83).

98 Ibid 144 (Mason CJ).

99 Ibid 238 (McHugh J).

100 (1997) 189 CLR 579.

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apparently on the basis that the challenged regulation was not unnecessarily restrictive.101

Balancing before McCloy

It is the third element of the proportionality analysis that might seem to be missing from the pre-McCloy analysis. However, I would argue that, although the Court has not always been explicit about it, the balancing of the interest pursued by the law against that pursued by the freedom has always formed part of its analysis.

To make this point let me be clear about what I take to be involved in balancing analysis. First, balancing is a metaphor for a judgment about the relative importance of competing values or interests. There is no sense in which balancing involves a weighing of incommensurable objects against each other in any kind of an objective sense. Second, the balancing analysis does not permit a law that is incompatible with the constitutionally prescribed system of government. It does not allow derogations from representative and responsible government. Rather it recognises that free political communication may sometimes be limited consistently with that system of government.

Understood this way, it is apparent that the ‘balancing’ process is performed as part of the consideration of the availability of alternative and less drastic means under the ‘reasonably appropriate and adapted’ test. To take Levy again, there obviously were less restrictive means of regulating the protesters. As I have previously suggested,102 perhaps the protesters could have been allowed to get closer to the hunting;103 restrictions might have operated over a more limited time; or (less plausibly) the regulations could have required an intermittent halt to the hunting which would have allowed the protesters to enter the hunting area, enabling them to be seen on television aiding or collecting killed or injured birds (as was their aim).104 However, the mere availability of such means is clearly insufficient to establish that the Levy regulations were valid. The employment of these means would impose an unacceptable cost on either the stated purpose of the regulations — protester safety — or on some other matter, such as the undisturbed continuance of hunting activities. Consequently, in considering the availability of less restrictive means the court is really considering whether the means used to achieve the specified end were justified, given the alternatives. Therefore, in considering the availability of alternative means, the Court is considering a specific aspect of the larger question: whether the end pursued is worth the restriction imposed. Thus balancing is subsumed within the concept of a law ‘reasonably appropriate and adapted’ to its end.

The idea that proportionality is an elaboration and not an innovation is evident in the joint reasons of French CJ, Kiefel, Bell and Keane JJ in McCloy:

All parties accepted that the Lange test was to be applied in this case … The only question, then, is as to what is required by the Lange test. In that regard, whether the impugned provisions are consistent with the freedom is to be determined, not by a side by side comparison of the challenged provisions with the text of ss 7, 24, 64 and 128 of the Constitution, nor by a determination of whether the impugned provisions are reasonably necessary in the pursuit of a purpose adjudged to be sufficiently important, nor by an impressionistic judgment as to whether the impugned provisions are consistent with the freedom. The Lange test requires a more structured, and therefore more

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

102 Stone, ‘The Limits of Constitutional Text and Structure’ (n 95) 682.

103 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 100) 599.

104 See Levy (n 100) 625.

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transparent, approach. In the application of that approach it is necessary to elucidate how it is that the impugned law is reasonably appropriate and adapted, or proportionate, to the advancement of its legitimate purpose.105

Later the majority states:

The plaintiffs’ submissions as to proportionality proceed on a correct basis, that proportionality analysis of some kind is part of the Lange test. However, those submissions, and others which have been put to the Court, tend to treat the question of proportionality as one at large and involving matters of impression, such as whether the legislative measures go too far, or not far enough. Something more should be said about the reason why it is necessary to enquire into the proportionality of a legislative measure which restricts the freedom. This requires examination of the nature of the proportionality enquiries which Lange renders necessary, their limits and their relationship with the Lange test of compatibility.106

The close resemblance of proportionality and the prior law thus underscores the point that proportionality — at least in its methodological conception — does not involve a form of analysis that is foreign to or cannot be adapted to the Australian context.

Part III: Proportionality and Its Alternatives

I have so far argued that proportionality need not be a transformative principle reshaping the relationship between the courts and the legislature within the field of its operation. It is capable of application consistently with the Australian constitutional context. The positive case for its adoption — whether it brings any improvement on the prior law — remains to be considered.

The Positive Case for Proportionality

The precise question I wish to address is whether proportionality improves upon the Court’s previous approach to freedom of political communication cases in which it adopted the ‘reasonably appropriate and adapted’ formulation. Before making that comparison, I will revisit the arguments commonly made for proportionality.

Proportionality, Flexibility and Context Sensitivity

One virtue of proportionality lies in its flexibility and context sensitivity. In this respect, proportionality is a ‘standard-like’ rather than ‘rule-like’ approach to decision-making. As it is usually explained,107 the difference between rules and standards lies in the relationship between underlying justification and application. Though rules are based upon some kind of background principle or policy, a rule’s application depends on the presence of specified facts. A rule binds a decision-maker even if its application is contrary to the background justification. A standard, by contrast, allows for the direct application of a background justification. Thus, standards allow decision-makers more discretion and encourage them to take into account of all relevant interests in a particular case.108

105 McCloy (n 2) 201 [23].

106 Ibid 212 [66].

107 See Stone, ‘The Limits of Constitutional Text and Structure’ (n 95) 688–9.

108 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 20

Proportionality is framed in ways that requires a limitation on a constitutional requirement to be justified in a manner that takes into account both the objective to which the challenged law is directed and the cost to the protected constitutional requirement. In this way, it focuses the decision-maker’s attention directly on the competing values represented on the one hand by the challenged law and the other by the constitutional requirement. Moreover, the court considers the objective of the particular law challenged in the case before it and the particular burden placed on the constitutional requirement.109

To demonstrate the advantages of flexibility and context sensitivity, Vicki Jackson draws a powerful comparison between Canadian and US constitutional law regarding unreasonable searches and seizures.110 In the US case of Atwater v City of Lago Vista111 a driver was arrested, handcuffed and driven to the police station with her children because neither she nor her children were wearing seatbelts, an offense that did not carry a sentence of imprisonment. The US Supreme Court found no Fourth Amendment violation under a rule that allowed police officers to arrest for any offence with reasonable cause. The United States Supreme Court thus struck a balance firmly in favour of a clear police power to arrest over the constitutionally protected liberty. In Canada, by contrast, in the analogous case of R v Aucoin,112 the Canadian Court using a proportionality approach considered not just whether the police officer had the authority to arrest but whether in the circumstances the exercise of this power was reasonable. Thus the proportionality approach — because it keeps to fore the question of whether the exercise of power is justified — is better able to respond to the particulars of the case and better placed to expose unreasonable exercises of police authority.

There is a long scholarly debate about the comparative merits of rule-like versus standard-like approaches to judicial decision-making.113 This debate can, however, be put to one side for the moment (though I will return to it below). It is not relevant for a comparison of proportionality as against the reasonably appropriate and adapted test because that latter test is also a flexible and context-sensitive test. Its notions of ‘legitimate end’ and ‘reasonably appropriate and adapted means’ focus attention on the particulars of the case and on underlying constitutional values rather than on the strictures of a particular rule. Proportionality continues rather than disrupts this tradition. Indeed, it is for just this reason that proportionality can be cast as compatible with Australian constitutional law.114

If there is a positive case for proportionality as offering advantages over the earlier test in Australian constitutional law, it lies not in the context-sensitivity of the test but in its structured and sequenced nature. That is, proportionality replaced a single formulation (is the law ‘reasonably appropriate and adapted to a legitimate end … in manner compatible with the constitutionally prescribed system of …government’) with

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).

109 douek (n 71) identifies ‘case sensitive’ adjudication as an ‘inherent commitment of proportionality’.

110 Jackson ‘Constitutional Law in an Age of Proportionality’ (n 70) 3134–5.

111 532 US 318 (2001).

112 [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.

113 See the discussion in Stone, ‘The Limits of Constitutional Text and Structure’ (n 95) 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.

114 As I have argued in Part II and others have elsewhere: see douek (n 71).

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a series of questions.115 Stating these questions as a sequence brings with it two effects:

1. First, it separates the questions of whether the law serves a particular end from the question of the availability of alternative means. As we have seen116 both these questions are addressed under the ‘reasonably appropriate and adapted’ formulation but the test does not identify them as a separate consideration; and 2. Second, the third question (‘adequate in its balance’) makes explicit the element of balancing that was previously implicit.

What are the advantages of an explicit and structured sequence of questions as compared a single statement in which some elements are run together and others only implicit? On the face of it there are are at least two: a structured sequence of questions improved the process of rational decision-making by judges (epistemic benefits) and the kind of reasoning proportionality requires of courts (and perhaps other constitutional actors) provides justifications for judicial decision-making that are better and more convincing (legitimacy benefits).

The Epistemic Case for Proportionality

The claim that proportionality produces epistemic benefits relies upon the idea that a structured series of questions ensures that judges address all criteria relevant to their decision in a conscious, rational and deliberate way. As developed by Mattias Kumm, the claim is that proportionality assists the judge to overcome various epistemic vices, including thoughtless adoption of traditions, conventions or preferences that might be embedded in other forms of legal reasoning and inattention to factual realities that might allow government claims to succeed without an appropriate factual basis.117

Kumm makes his argument by way of an analogy to Socratic contestation.118 On his account, the point of proportionality is to compel public authorities to justify their actions and the court’s role — like the interlocutor in a Socratic dialogue — is to ask questions and assess ‘the coherence of the answers that the parties provide it with’.119 Vicki Jackson makes a similar point relying upon cognitive psychology of professional decision-making, which shows that judges rely upon both implicit judgment and more conscious and rational methods.120

115 Dixon (n 48) [cite]: ‘The idea of a law being ‘appropriate and adapted’ suggests both that it should be suitable (i.e. appropriate) and narrowly tailored (i.e. adapted) to achieving its purpose. But the test itself does not make clear the two-staged nature of this inquiry’.

116 See above nn 103–104 and accompanying text.

117 Mattias Kumm, ‘The Idea of Socratic Contestation: The Point of Rights-Based Proportionality Review’ (2010) 4 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 123–125 and accompanying text) and exposing the capture of legislatures by special interest groups. For reasons of space only the first three are discussed here.

118 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’.

119 Kumm (n 117) 153–4.

120 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 22

Formalizing the steps of proportionality analysis in a doctrine that judges would apply may help inform and be informed by judges’ more intuitive or implicit sense of what the correct legal answer.121

The value of the conscious and rational nature of proportionality analysis therefore is to discipline implicit judgment which the ‘reasonably appropriate and adapted’ test, by virtue of its statement in a single formulation, might fail to do.

The Legitimacy Case for Proportionality

The second kind of argument made in favour of proportionality relies on the capacity of a more disciplined form of analysis to improve the legitimacy of judicial decisions in various ways. In this context, it is commonly said that the structured form of the proportionality produces judicial reasoning that is more transparent.122 In other words, the discipline imposed by the structured set of questions means that judges will reveal the reasons for their decisions more fully. There are rule of law reasons to value candour and transparency in judicial decision-making: understanding the reasons for decision is important to the parties involved and to those who will rely on the law in the future, it allows judicial decisions to be examined and criticized,123 and it communicates the law to the citizenry at large. The role of proportionality in revealing the grounds of decision has been explicitly recognised by some judges in Australia and elsewhere124 but the legitimacy case for proportionality goes beyond transparency.

Proportionality is said to promote not just transparency of justification but to require justification in terms that can be justifiable to or accepted by all citizens. The focus of proportionality analysis on the aim of the challenged law; the relationship between that aim and the means provides a test as to whether the asserted objective of the law is the real objective. Not everyone will agree with the court’s analysis but the point is that the legitimacy of arguments of this kind are accepted even when there remains disagreements as to the results.125 Put in philosophical terms, proportionality analysis is said to respect the limits of ‘public reason’ and exclude for example arguments based on comprehensive conceptions of the good such as controversial

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 University of Pennsylvania Law Review 349.

121 Jackson, ‘Pockets of Proportionality’ (n 120) 363–4.

122 See, eg, douek (n 71) 21–2.

123 Vicki C Jackson, ‘Being Proportional about Proportionality’ (2004) 21 Constitutional Commentary 803, 830– 4; Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 70) 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).

124 It is an element of the High Court’s reasoning in McCloy (n 2) 217 [78], citing Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700, 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 v Her Majesty’s Treasury (No 2) [2014] AC 700, 790 [74]. See also Clubb (n 3) 544 [463] (Edelman J) and the discussion in Dixon n 48 [pinpoint].

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

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religious, moral and philosophical claims.126

Building on arguments of this kind, Vicki Jackson and others have argued that proportionality reasoning also promotes rational deliberation beyond the courts. The use of proportionality analysis by the courts will encourage legislators to address their minds to the elements of proportionality:

Legislators who understand that statutes will be evaluated under proportionality standards if challenged as infringing on individual constitutional rights will have reason to give attention to the rationality of the means, to whether there are other means less likely to intrude on rights, and to whether the gains to be achieved are weightier and of such a character as to warrant intrusions on protected freedoms.127

Lastly, by promoting rational deliberation of this nature, proportionality may make a contribution to a community’s understanding of the law and its sense of justice. For these reasons, Chief Justice Kiefel has argued that ‘coherent and logical standards of review’ further the Court’s ‘educative’ role. 128

Proportionality Compared to Reasonably Appropriate and Adapted Test

In the light of these arguments, proportionality appears to offer a clear advantage over the former ‘reasonably appropriate and adapted’ test. But the focus so far has been on the formulation of the test. That focus leaves out important information. Reviewing the application of the ‘reasonably appropriate and adapted’ test reveals that it was often applied in ways that were very transparent as to underlying justification.

Consider for instance ACTV, which pre-dates even the Lange formulation. In that case, despite the absence of structured proportionality, the following elements of the majority’s reasoning are very clear. First, it is evident from the reasoning that the challenged law was directed towards a legitimate end of preventing actual or perceived corruption and undue influence.129 Second, it is apparent that the problem with the law lay in the means used to pursue that end and more specifically with the apparent tendency of the particular legislative scheme to favour incumbent office holders and established political parties.130

So far the analysis tracks structured proportionality analysis by considering in effect suitability and necessity. In addition, the judgments are at least in some cases quite transparent about balancing. For instance, Mason CJ acknowledges that in all cases it will be necessary to ‘weigh the competing public interests’ and that where a law imposes restriction on an activity or mode of communication:

Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve,

126 Kumm (n 117) 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, expanded 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.

127 Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 70) 3146.

128 Chief Justice 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.

129 ACTV (n 83) 144–5 (Mason CJ).

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

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and for a determination whether the restriction is reasonably necessary to achieve the competing public interest.131

The law was therefore ultimately held invalid because the costs imposed on freedom of political communication could not be justified in the light of their severity.132 Thus, while Mason CJ does not explicitly utilise proportionality analysis, its elements are there.

Other judges in that case do not use the word ‘balancing’ but their reasoning is clear that the object of the challenged law is an interest or value that competes with the freedom of political communication, requiring the law to be justified having regard to the burden it imposes.133 As McHugh J expresses it:

While the rights which ss 7 and 24 confer are not absolute, they are so fundamental to the achievement of a true choice by the electorate that a law enacted pursuant to the powers conferred by s 51 which seeks to prohibit or regulate the content of electoral communications can only be upheld on grounds of compelling justification.134

Thus, his Honour accords the rights conferred by ss 7 and 24 great weight and therefore requires a ‘compelling justification’.135 Something similar is evident in Lange, in which the Court identifies the protection of reputation on the one hand and freedom of political communication on the other as competing interests. The judgment, moreover, readjusts the balance struck by the common law of qualified privilege in favour of freedom of political communication.136

So, the pre-McCloy law appears to be more transparent than attention only to the form of the ‘reasonably appropriate and adapted’ test might suggest. Of course, proportionality might still be an improvement. Rather than requiring the reader to scour the judgment for evidence of the balancing analysis, perhaps proportionality analysis means that balancing analysis will be evident in every case and clearly signaled in every case. Moreover, a fuller and more detailed analysis of the case law might ultimately reveal a different result. Perhaps cases like ACTV and Lange137 will turn out to have been exceptional in some way and viewed over the long-term proportionality analysis will perform better in terms of producing disciplined analysis and transparency of decision-making. However, it is at least possible that the post-McCloy law may not live up to the promise of its form. In principle, there is no reason that proportionality analysis could not be also used as a ‘ritual incantation’138 — a criticism directed at the ‘reasonably appropriate and adapted’ test —

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

132 ACTV (n 83) 146–7.

133 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).

134 ACTV (n 83) 235.

135 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.

136 Lange (n 8) 568.

137 Coleman v Power (2004) 220 CLR 1 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 University of Queensland Law Journal 80, 84–9.

138 Coleman v Power (2004) 220 CLR 1, 90 [234] (Kirby J).

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that in effect serves as a substitute for rather than a spur to more transparent reasoning.

In addition, the costs of doctrinal innovation must be factored in. The ‘reasonably appropriate and adapted’ test has a long history in Australian constitutional law and had been an element of the law of freedom of political communication almost from its beginning.139 It may be that, as I have argued in this article, proportionality can be reconciled with the Australian constitutional order precisely because it closely resembles that test. But demonstrating that has taken considerable judicial and scholarly effort, and opinion in the High Court remains divided.140 In addition to this distraction, there is a risk that proportionality analysis will be confusing especially in busy lower courts, which do not have the time and resources for the painstaking review of case law in this symposium and elsewhere.141

My point here is not to blame the tool rather than the worker,142 but to insist that the desirability of a test be assessed in the context of its actual or likely application. Viewed in this light, the merits of proportionality and of the ‘reasonably appropriate and adapted’ are much closer than first appears. Whether proportionality produces significant improvements remains to be seen and certainly cannot be assumed. Certainly proportionality has so far not changed the outcome in any case before the Court.143 On the contrary, in all of McCloy, Brown, Clubb and Banerji, judges rejecting proportionality have reached the same results as the majority who accept it.

Proportionality Compared to Calibrated Scrutiny

Given the similarity between proportionality and the prior ‘reasonably appropriate and adapted’ standard, the controversy that has consumed the High Court in recent cases seems really to be something of a storm in a teacup. But before concluding, there is one further relevant comparison to undertake. Proportionality should also be compared with a third approach, expounded in most detail by Justice Gageler. This approach, which Justice Gageler calls ‘calibrated scrutiny’, draws upon the prior law but develops it considerably.

Calibrated Scrutiny

This method of analysis receives its fullest elaboration in Clubb, where his Honour outlines an approach that, as Rosalind Dixon has explained, takes account of a range of context-specific factors and broader concerns derived from representative government.144 The essential elements of the approach are as follows:

1. First, a judge determines ‘the nature and intensity of the burden … on political communication’ imposed by the challenged law; 2. Second, the judge calibrates ‘the appropriate level of scrutiny to the risk … pose[d] to maintenance of the constitutionally prescribed system of representative and responsible government’;

139 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

140 In Banerji, 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 144–152 and accompanying text.

141 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.

142 Cf douek (n 71) 10.

143 Ibid.

144 Dixon (n 48).

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3. Third, the judge ‘isolate[s] and assess[es] the importance of the constitutionally permissible purpose of the prohibition’; and 4. Finally, the judge applies ‘the appropriate level of scrutiny so as to determine whether the [challenged law] is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with maintenance of the constitutionally prescribed system of government’.145

The manner in which these elements were applied in Clubb is highly revealing. In Clubb the Court heard two matters together: Clubb v Edwards and Preston v Avery. The Preston v Avery matter146 was a challenge to provisions of the Reproductive Health (Access to Terminations) Act 2013 (Tas) which prohibited, within a 150 m ‘access zone’, ‘a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided’. Justice Gageler’s analysis proceeds through the stages just described.

First, in determining the nature of the burden imposed, Gageler J took account of the fact that the prohibition was directed at public demonstration; that in light of the history of abortion protests in Australia it was inevitably directed at ‘inherently political’ expression in the form of approval or disapproval of the current law; that the prohibition was ‘site-specific’ — applying only within the designated ‘access zone’ — and, as a practical matter, ‘time-specific’;147 and that it ‘curtails protests by those who seek to express disapproval of the availability of services of the kind provided at the premises to a significantly greater extent than it curtails protests by those who seek to express approval’.148 He concluded in light of these factors that the burden imposed was ‘direct, substantial and discriminatory. The prohibition discriminates on its face against a traditional form of political communication and discriminates in its practical operation against use of that form of communication to express a particular viewpoint.’149

Having characterised the burden in this way, Gageler J, moving to the second stage, calibrated the level of scrutiny required in two ways:

The first is that the purpose of the prohibition needs to be more than just constitutionally permissible; it needs to be compelling. The second is that the prohibition needs to be closely tailored to the achievement of that purpose; it must not burden the freedom of political communication significantly more than is reasonably necessary to do so.150

Turning, thirdly, to the purpose of the challenged law, he accepted that it was intended to ‘ensure that women have access to premises at which abortion services are lawfully provided in an atmosphere of privacy and dignity’ and holds that this is ‘unquestionably constitutionally permissible and … of such obvious importance as to be characterised as compelling’.151 Turning finally to the fourth consideration of justification, he addressed in detail the question of the justifiability of the 150 m ‘access zone’, concluding

145 Clubb (n 4) 484 [162].

146 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 4) 482–3 [152]–[153].

147 In practical terms, the prohibition would only operate when the premises were open and could be accessed: Clubb (n 4) 485 [169].

148 Ibid 484–5 [164]–[170].

149 Ibid 486 [174].

150 Ibid 488 [184].

151 Ibid 490 [197].

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that the availability of locations where protesters were able to stand and communicate with a large number of people entering the access zone was decisive.152

There are obvious structural similarities between this analysis and proportionality analysis in the structured consideration of ends, means and justification. However, Justice Gagler’s approach moves somewhat in the direction of a more ‘rule-like’ approach. The tailoring of the reasons to the specific context of a content-specific, viewpoint-discriminatory law targeting public protest provides a more specific and factually confined precedent. It identifies, in concrete ways, factors that will be relevant to the calibration of scrutiny in future similar cases. Under this approach a question to be asked in future cases will be whether the law ‘discriminates on its face against a traditional form of political communication’ or ‘discriminates in its practical operation against … a particular viewpoint’. Where these features of the law are present, moreover, a burden on political communication will be difficult to justify.

Proportionality or Calibrated Scrutiny?

In light of the characteristics just outlined, Gageler J’s approach returns us to the competing merits of flexibility on the one hand and predictability and to the ‘rules versus standards’ debate that we previously set aside.153

To summarise a large and complex literature, in some contexts, rules and standards are generally understood to offer different suites of advantages and disadvantages. Rules provide a greater measure of predictability in their application which in turn provides greater guidance to courts, legislators and citizens. Rules may be especially important where constitutional review is highly diffuse because they provide more guidance to lower courts. Standards, by virtue of their flexibility, are more likely to allow judges to reach the right result in particular cases by taking into account all the particulars of a given case.154 Standards are especially appropriate where final courts (or constitutional courts) are able effectively to supervise the application of constitutional review and correct errors in lower courts.

To be clear, Justice Gageler’s approach does not converge upon the highly rule-like approaches that characterise much of the constitutional law of the United States. Rules and standards exist along a spectrum. There are some legal norms that are highly rule-like, identifying the conditions for their applicability with great specificity; there are also some standards that come close to a direct statement of the justification;155 and there are other tests that sit somewhere between the ends of the spectrum.156 Justice Gageler’s approach while moving somewhat in the direction of rules (specifying more clearly characteristics of a law that will trigger heightened scrutiny) still retains much of the structure of proportionality by focussing on means, ends and justification. Therefore, some of the weaknesses of rules — their context insensitivity157 and their

152 Ibid 492–3 [209]–[212].

153 See Vicki C Jackson, ‘Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conversation on “Proportionality”, Rights and Federalism’ (1999) 1 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 95).

154 See the discussion in Stone, ‘The Limits of Constitutional Text and Structure’ (n 95) 687–91.

155 Consider Holmes’ rule and Cardozo’s standard, discussed at above n 108.

156 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.

157 Highlighted by Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 70).

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inadequacy in the regulation of highly complex forms of activity where flexibility is more required158 — do not seem to be in the offing. Nor does there appear to be in Gageler J’s approach anything of the extreme reluctance to engage in reasoning as to matters of degree that Mark Tushnet has identified as a feature of the rule-like law of the First Amendment.159

Nonetheless, the relevance of the debate is evident. Justice Nettle, for instance, is sceptical of the benefit of fastening on factors like discrimination or ‘time, place and manner’ restrictions. Quickly identifying the weakness of the approach — the possibility that its relative rigidity will produce consequences that do not well reflect the underlying justification — his Honour concludes that calibrating factors ‘substitute for principles of analysis capable of general application facts which in some contexts may but in others should not lead to the conclusion that an impugned law is appropriate and adapted to the achievement of a legitimate purpose’.160 Justice Nettle therefore prefers to restate and apply directly the relevant standard:

The question will be whether the discriminatory effect of the impugned law can be justified as reasonably appropriate and adapted to a legitimate purpose.161

This exchange reveals a significant difference in approach with Gageler J preferring to identify the circumstances in which a law will be invalid in some more concrete and determinative ways and Nettle J continuing to insist that context must always be the guide.162 It is to the contrast between these two approaches that judicial and scholarly attention might productively turn rather than the distinction between proportionality and the near identical ‘reasonably appropriate and adapted alternative.

The choice between these two forms of analysis, however, is not ‘either–or’. There are many points along the spectrum. As noted, the Court might develop ‘rules’ that include standard-like elements. It may also mitigate the determinacy of rules through the development of exceptions. And the choice need not be made all at once. On the contrary, it may be that over time, the flexible proportionality doctrine will become at

158 Braithwaite (n 113).

159 See Mark Tushnet, ‘Heller and the Critique of Judgment’ [2008] Supreme Court Review 61; Mark Tushnet, ‘The First Amendment and Political Risk’ (2012) 4 Journal of Legal Analysis 103, discussed in Jackson, ‘Constitutional Law in an Age of Proportionality’ (n 70) 3149–50.

160 Clubb (n 5) 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 105) 379–80 (citations omitted).

161 Clubb (n 5) 506 [265].

162 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 Supreme Court Law Review 2d 501, 520–1.

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least somewhat more rule-like.163 As the Court decides more cases, more and more defined propositions may emerge and these in turn may crystallise in the form of more rule-like tests. Of this kind of development, I have previously written:

this is an entirely familiar process. The eventual emergence of relatively defined propositions of law from the gradual process of analogical, case-by-case reasoning typifies common law reasoning. It would be a mistake, of course, to think that this is an entirely smooth, linear process. The process of formulating a rule out of existing precedent can be complicated by inconsistent, or at least apparently inconsistent, precedent. Indeed, the capacity to do so it is considered the mark of a great common law judge. Nor are established rules entirely stable. Rules might prove inadequate in some way and the Court may develop exceptions that eventually lead to wholesale departure from an announced rule. But in the end, a system of relatively defined, relatively stable propositions is likely to emerge from a case-by-case analogical reasoning process.164

The possibility of the gradual and incremental development of a more determinate and somewhat more rule-like approach points to a possible reconciliation between the two approaches currently evident in the Court. It might be that proportionality can provide a mechanism for the incremental development of the law. A court applying a flexible proportionality-type test will be required to revisit directly the justification for the freedom of political communication and as it does so, through the operation of precedent, it may produce a set of doctrines or rules tailored to specific circumstances that provide guidance to courts, legislators and citizens as to the limits of the freedom. Rosalind Dixon takes up the challenge of better specifying this pathway in her contribution to this symposium.165 As she shows, proportionality could be a path to a future body of law that best reflects the rationale for the freedom of political communication and combines the best of proportionality and its alternative approaches.

Conclusion

I hope now to have made three points. The first goes to the negative case against proportionality. I have argued that proportionality need not be associated with a strong conception of constitutional rights which would render it in appropriate to the Australian constitutional context. On the contrary, it can be conceived of as a method for the determination of the legitimacy of an end to which a challenged law is directed and the validity of the means chosen by the law to pursue that end. Understood in this way, proportionality is an elaboration of (not a replacement for) previous approaches; and it can be adapted to the distinct nature of the Australian constitutional context, including the rationale for the freedom of political communication as an implication from representative and responsible government. For these reasons, the case for excluding proportionality from Australian constitutional law, in principle, is rather weak.

The second goes to the positive case for shifting from the previous law to proportionality analysis. I have argued that the case for proportionality is inconclusive. Proportionality largely reproduces the form of analysis previously used. In formulation it 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.

Finally, I have argued for a reorientation of the debate about proportionality to a consideration of the gradual development — where appropriate — of more specific, rule-like tests. Justice Gageler’s ‘calibrated scrutiny’ approach is a promising framework for this analysis. However, it need not be seen as an alternative

163 See also Jackson, ‘Pockets of Proportionality’ (n 120) 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 123) 754.

164 Stone, ‘The Limits of Constitutional Text and Structure’ (n 95) 704–5. See also Clubb (n 5) 546 [469] (Edelman J).

165 Dixon n 48.

30 to the proportionality method. On the contrary, the two could be reconciled and proportionality used as a manner for better development of the law.

31