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Proportionality in Australian Constitutional Law

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Proportionality in Australian Constitutional Law PROPORTIONALITY IN AUSTRALIAN CONSTITUTIONAL LAW Shipra Chordia A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Law 6 February 2018 DISSERTATION SHEET COPYRIGHT STATEMENT 'I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed Date AUTHENTICITY STATEMENT 'I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.' Signed Date ORIGINALITY STATEMENT ‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’ Signed Date 6/2/18 ii ACKNOWLEDGEMENTS I am extremely grateful to have had the opportunity to undertake this research within the vibrant and supportive academic environment at UNSW Law and the Gilbert + Tobin Centre of Public Law. I am particularly indebted to my supervisors, Andrew Lynch and George Williams, for their ongoing generosity, encouragement, inspiration and support. I have benefited greatly from their deep expertise and incisive guidance, and they have each been central to my professional and personal development in numerous ways. It is not possible to thank them enough. I have also been fortunate enough to receive support and advice from a number of others within the Faculty of Law. In particular, I would like to thank Rosalind Dixon, Gabrielle Appleby and Sean Brennan. They have each challenged me to broaden my thinking in remarkably prescient ways, and this research would not have been possible without their generosity and insight. I am very grateful to Jenny Jarrett for her invaluable assistance and her tireless efforts at making the PhD experience as enjoyable as possible. I would also like to thank Ben Golder, Jason Varuhas, Paul Kildea, Theunis Roux, Mark Aronson and Simon Halliday for offering insightful comments and critique and providing broader guidance, and Belinda McDonald for her kindness and support throughout my candidature. The analysis undertaken in this research has been enriched by informal discussions with both Australian and international scholars and former members of the judiciary. In particular, I would like to thank Sir Anthony Mason for generously sharing his insights and proving to be as inspirational in person as one might expect from reading his discerning judgments. I would also like to thank Vicki Jackson, Richard Fallon, Jeff King, Conor Gearty, Murray Wesson, Iddo Porat, Niels Petersen, Brendan Lim, Nick Owens, and the Harvard Law School Visiting Researcher Program. The last three years have been spent in the wonderful company of fellow members of the PhD community at UNSW Law. This community has been a continual source of emotional support, lively discussion, fun and occasional silliness. Particular iii thanks go to Zsofia Korosy, Lynsey Blayden, Harry Hobbs, Shreeya Smith, Lauren Butterly, Scarlet Wilcox, Steve Young, Megan McElhone, Chris McElwain, Holly Blackmore, Jemimah Roberts, Christian Ponce, Jackie Hartley, Zach Richards, Keiran Hardy, Sangeetha Pillai and Amanda Wilson. You are an incredibly talented bunch and it has been a joy to share this journey with you. A very special thank you must go to my family and friends for their endless support and encouragement over the years. To Mum and Dad, I will never be able to repay you for all that you have sacrificed for me. Your calm words of reassurance keep me grounded, your warmth keeps me nourished and your love is all that I need. To Pankaj, Natalie and Harrison, you light up my life and make it worth living. Thank you for everything, especially the giggles. To Aline, Joe, Finn, Lisa, Laksmi, Rachael, Priya, Leanne and Ben, thank you for feeding me, making me laugh, taking my mind off things and generally keeping me sane. I hope I get to keep you all for a very long time to come. I gratefully acknowledge the financial support for this study provided by the Australian Postgraduate Award, UNSW’s Postgraduate Research Support Scheme, the Faculty’s Top-up Scholarship and HDR Fieldwork Support Fund, and the Sir Anthony Mason PhD Award in Public Law. To Dhaisa, who never had the chance Shipra Chordia Sydney 6 February 2018 iv TABLE OF CONTENTS DISSERTATION SHEET ............................................................................................................... i ORIGINALITY STATEMENT ..................................................................................................... ii ACKNOWLEDGEMENTS ...........................................................................................................iii TABLE OF CONTENTS ................................................................................................................ v ABSTRACT ..................................................................................................................................... x PART I ............................................................................................................................................. 1 CHAPTER 1. INTRODUCTION ............................................................................................... 2 I. PROPORTIONALITY IN GLOBAL CONSTITUTIONAL LAW .................................... 2 A. What is proportionality? ................................................................................................. 3 B. What does proportionality assist courts to do? ............................................................... 6 C. How does proportionality relate to institutional considerations? ................................... 7 II. PROPORTIONALITY IN AUSTRALIAN CONSTITUTIONAL LAW ........................... 9 A. What does proportionality mean in Australian constitutional law?................................ 9 B. Is proportionality appropriate in the Australian constitutional context? ...................... 10 III. OBJECTIVES OF THE THESIS ...................................................................................... 11 IV. METHODOLOGY AND LIMITS OF THE THESIS ....................................................... 12 A. Summary of method ..................................................................................................... 12 B. Selection of jurisdictions of interest ............................................................................. 13 C. Areas of domestic focus ............................................................................................... 15 D. Scope and limitations ................................................................................................... 18 V. STRUCTURE OF THE THESIS ...................................................................................... 19 CHAPTER 2. PROPORTIONALITY AS A CONCEPT ....................................................... 23 I. INTRODUCTION ............................................................................................................ 23 II. PROPORTIONALITY’S CLASSICAL FOUNDATIONS .............................................. 24 A. Proportionality as a concept beyond law ...................................................................... 25 B. Plato and Aristotle on proportionality .......................................................................... 26 v C. Proportionality in early ‘just war’ theory ..................................................................... 27 D. Proportionality as a standard of moral assessment ....................................................... 30 III. PROPORTIONALITY IN GERMAN PUBLIC LAW ..................................................... 31 A. Proportionality as means ends analysis ........................................................................ 31 B. Proportionality as a form of balancing ......................................................................... 33 C. The dominance of means ends analysis in Prussian administrative law ...................... 34 D. The rise of the balancing form of proportionality
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