All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia

Abstract

In the 2015 case of in McCloy v New South Wales, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time. The decision was generally regarded as heralding a new chapter of judicial review of legislation said to infringe the implied freedom of political communication. This belief was short-lived – decisions that followed cast doubt on the place of structured proportionality in Australian constitutional law. The recent case Clubb v Edwards; Preston v Avery is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. There are three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate; that it involves judges transgressing the separation of powers; and that it is inappropriate in the unique context of the freedom. There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of “compared to what?” Many of the criticisms levied against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is “appropriate and adapted” to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly-proposed alternative of a categorical approach. The particular method of judicial reasoning in freedom cases might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti- structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the “worst” of the available options. This paper argues that structured proportionality is not even that “worst” option.