Proportionality and its Alternatives

Abstract

This paper addresses the controversy in Australian constitutional law regarding the use of proportionality analysis. At first sight, this controversy is puzzling given the widespread acceptance of proportionality in other legal systems and the High Court’s previous apparent acceptance that proportionality analysis is equivalent to established methods. Nonetheless doubts about proportionality persist To answer these questions, I consider two possible understandings of proportionality. The first conceives of proportionality as 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. Viewed in light of Australian orthodoxy, this conception of proportionality readily gives rise to objections. 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 but is 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’). If we focus on this second conception, the negative case against proportionality is weak. However, the positive case for shifting from the previous law to proportionality analysis is entirely another matter. Proportionality promises a slight increase in transparency by isolating the balancing element of the analysis. However, it is unclear how much difference this adjustment will make in practice especially in the light of distraction and confusion created by doctrinal innovation. Finally, the article considers third method: Justice Gageler’s ‘calibrated scrutiny’ and argues that this approach has the potential to provide a greater measure of clarity and predictability without sacrificing all of the benefits of proportionality. However, it need not be seen as an alternative to the proportionality method. On the contrary, the two could be reconciled and proportionality used as a manner for better development of the law.