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Proportionality and Its Alternatives

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Proportionality and Its Alternatives 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
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