A Chance to Close the Proportionality Chapter in Australian Constitutional Law?
17.11.2023
The growth of structured proportionality in recent years has been a much remarked upon feature of global constitutionalism. Even supporters of proportionality describe how it ‘exhibits a viral quality, spreading relatively quickly from one jurisdiction to another’ – not, exactly, an image of careful adaptation. Originating in Germany, proportionality spread to Australian constitutional law in respect of the implied freedom of political communication in the case of McCloy v New South Wales in 2015, and in respect of s 92 in the case of Palmer v Western Australia in 2021 (after previously being considered in earlier cases). However, Gageler J and Gordon J have maintained principled opposition to the use of structured proportionality in these and other cases. Gageler J became Chief Justice of Australia on 6 November 2023. Does that change things?
In this blog, I consider the possible significance of the new Chief Justice to the proportionality debate, before explaining why I consider that proportionality should be abandoned in Australian constitutional law, and suggesting an alternative approach. The appointment of Gageler CJ offers at least a glimmer of hope that a long-divided High Court might move to unify around a non-proportionality test in the areas of the implied freedom of political communication and s 92. My proposal would be a test of reasonable necessity that eschews the ‘suitability’ and final balancing (‘adequacy’) stages of the proportionality test, the former of which is superfluous and the latter of which is problematic.
The significance of Gageler CJ
Since McCloy, Gageler J and Gordon J have opposed the use of structured proportionality and offered a range of criticisms of it. In Palmer, Gageler J described his concerns with proportionality as stemming especially from its structured nature (at [143]-[144]):
To be clear, my concern is with structured proportionality (‘Verhältnismäßigkeit’), of the kind translated and presented in tabular form in McCloy, and of the kind which the Second Senate of the German Federal Constitutional Court recently castigated the European Court of Justice for failing to understand. Structured proportionality commands the undertaking of consecutive inquiries into ‘suitability’ (‘Geeignetheit’), ‘necessity’ (‘Erforderlichkeit’), and ‘adequacy of balance’ (‘Zumutbarkeit’) or ‘appropriateness’ (‘Angemessenheit’). Structured proportionality exhaustively defines, and in so doing confines, each of those standardised inquiries. Relevant considerations not captured within ‘suitability’, as strictly defined, or ‘necessity’, as strictly defined, are pushed down to be swept up in the residual inquiry into ‘adequacy of balance’ or ‘appropriateness’. … Quite apart from my reservations about judicial importation of a tool of legal analysis forged in a different institutional setting within a different intellectual tradition and social and political milieu where it has been deployed for different purposes, my concern about structured proportionality as a tool of legal analysis, as I have sought to explain before, is with its rigidity.
Further, Gageler J and Gordon J have identified flaws with the final balancing stage of proportionality (adequacy). Gageler J pointed out in Brown v Tasmania (2017) that this stage was ‘too open-ended, providing no guidance as to how the incommensurables to be balanced are to be weighted or as to how the adequacy of their balance is to be gauged’ (at [160]). In the same case, Gordon J asked: ‘what are the criteria for judging the importance of the legislative purpose? Without any principled answer to that question – and none is apparent – it is difficult to see how a court can undertake an objective analysis’ (at [432]). Instead of structured proportionality, Gageler J has put forward a suggested approach of calibrated scrutiny in the context of the implied freedom of political communication, while Gageler J and Gordon J put forward tests of reasonable necessity in the s 92 context.
Does it matter that a critic of structured proportionality is now Chief Justice? In short, it might, or it might not. The influence of any one Chief Justice on the decision-making of the High Court is uncertain. The Chief Justice has an institutional leadership role, but only wields one vote in a case, like any other Justice of the Court. Moreover, the Justices of the High Court can obviously be expected to form their own independent judgment of legal issues and to have their own distinctive views of jurisprudential questions. However, the Chief Justice is sometimes thought to have a role to play as an intellectual leader of the Court. The extent to which a Chief Justice is perceived to be influential in this sense has varied greatly over the history of the High Court, as discussed by Rosalind Dixon and George Williams in their introduction to The High Court, the Constitution and Australian Politics:
‘For some eras, … the Chief Justice has also been a reliable [bellwether] for the current of High Court decision-making. In other eras, the Chief Justice may have only spoken for himself and not for a majority of the Court.’
For example, the developments that took place in High Court case law during the tenure of Mason CJ are famously described by Jason Pierce as a ‘Mason Court revolution’. However, Andrew Lynch writes in a review of Pierce’s book that ‘just as important as Mason’s intellect and leadership was the existence of “a coterie of like-minded, reform-oriented judges”, since this acknowledges that, of course, a judge on a multi-member court does not exist in isolation from his or her colleagues but performs the functions of office alongside them’. As Lynch points out (paraphrasing Pierce), ‘how courts function is dependent upon a complex interplay of legal, individual, institutional and political variables’. There is no doubt that the identity of the Chief Justice is one such variable – but perhaps no more than that. Nonetheless, if an attempt were made to find common ground around a post-proportionality test – one that might finally reunify the Court – Gageler CJ may play a role in guiding it. In my view, such an attempt would be welcome, as proportionality shows genuine flaws.
The argument for abandoning proportionality
In a recent article in the Australian Journal of Law and Religion – and an associated podcast – I discuss the problems with proportionality in some detail to explain why I consider that proportionality should not be used as a test under the free exercise clause of s 116 of the Australian Constitution. However, my critique is a general one, and also applies to other areas in which proportionality is employed: the implied freedom of political communication and s 92. In my view, there are two key problems with proportionality. One is that structured proportionality is quite repetitive, asking variations of the same questions. In particular, the suitability stage, which requires that an impugned law’s measures are rationally connected to the purpose they seek to achieve, does not add much to the analysis.
Although proportionality’s proponents sometimes claim that the ritualistic structure of the test amounts to ‘transparency’, in practice little would be lost by dropping the suitability stage, since a law that failed this test would also fail necessity. (Necessity asks whether there is an alternative measure available which is equally practicable and less restrictive of the freedom, and is the only stage of the test that I consider to be useful and appropriate.) Ariel Bendor and Tal Sela describe proportionality memorably in an article in the International Journal of Constitutional Law:
[T]he sub-tests of proportionality are structured like a legal version of the Russian matryoshka doll, with each stage of the constitutional analysis containing all the preceding ones. The necessity test encompasses the rationality test. In any factual situation in which there is no rational connection between the purpose that the legislative authority is seeking to achieve and the infringement on the constitutional right, it is possible to accomplish the same purpose by means that infringe on the right to a lesser extent. Similarly, the proportionality sensu stricto sub-test includes both the necessity and rational connection requirements.
Although the repetitiveness of proportionality may be concerning, the bigger difficulty is what is often called the ‘incommensurability’ problem at its final balancing (adequacy) stage, in which the benefit sought to be achieved by a law is weighed against its adverse effect on a freedom. There is no common measure between these two matters, nor are there any specified criteria for making the comparison. The apples-to-oranges nature of the balancing at the adequacy stage is one that grants courts a very large discretion that is arguably inappropriate in the constitutional law context, when the stakes are the possible invalidity of Acts of Parliament. Writing in the context of proportionality under the Human Rights Act 1998 (UK), Sir Patrick Elias outlines the difficulties as follows:
The controversial area is [the final stage of proportionality], the balance between the individual right and the countervailing public interest, and cases frequently turn on this assessment. This is not a simple comparison because one is not comparing like with like; there are no obvious objective criteria for making the assessment. In truth there is little which can properly be called judicial in this exercise … The courts are being given a power that is often essentially political in nature.
The advantages of a reasonable necessity test
It is well known that proportionality, as a concept originating in Germany that is foreign to the common law, has a tendency to displace locally developed concepts. Commenting on the rise of a kind of proportionality ground of review in administrative law in England, Mostyn J wrote that ‘[t]here is no doubt that in the world of judicial review proportionality has advanced like a cuckoo, occupying the common law nest of traditional assessment, laying its continental eggs in it, and ejecting its home-incubated Wednesbury hatchlings’. In Australia, proportionality seemingly did the same thing to the Lange v Australian Broadcasting Corporation test, which had been adopted by a unanimous seven judge High Court in 1997. The introduction of proportionality led to a long period of ‘doctrinal instability’ – and division on the Court.
However, unlike structured proportionality, a test of reasonable necessity has a long pedigree in High Court jurisprudence, though the details and purpose of the test may vary depending on the context. In my article in the Australian Journal of Law and Religion, I discuss how reasonable necessity is more consistent with earlier case law on the free exercise clause of s 116 than proportionality would be. In Palmer, a test of reasonable necessity was favoured by Gageler J and Gordon J in the s 92 context in reliance on the precedent of Betfair v Western Australia (2008). Just recently, a test of reasonable necessity was applied in the Ch III context in Jones v Commonwealth (2023). The plurality in Falzon v Minister for Immigration and Border Protection (2018) highlighted that in the Ch III context the test of reasonable necessity was being used to discern the true purpose of the law (at [31]). (As a side note, it is welcome that in Jones the High Court paid significant attention to the naturalisation limb of s 51(xix) when considering citizenship legislation, as advocated for in a 2021 post on this blog, which questioned why this power had been overlooked.)
Roughly, a test of reasonable necessity would omit the suitability and final balancing (adequacy) stages while retaining a means-end analysis that is similar to the necessity stage of structured proportionality. The main counterargument to such a test is likely to be that the elided stages – and perhaps especially the final balancing stage – play some kind of valuable role. For example, in Palmer, Edelman J accepted that the final balancing stage of the test was controversial, while still seeking to defend proportionality (at [267]):
The third stage requires a comparison of the importance of competing policies, upon which Parliament is far better suited to judge in a representative democracy. There is great force to this objection. In Clubb v Edwards, I explained why this third basis for invalidating laws must be highly exceptional. The third stage permits the invalidation of a law even though the purpose of the law is legitimate and despite the means adopted being reasonably necessary to achieve that purpose. In other words, invalidation at the third stage of a law that has satisfied the first two stages might have the effect that Parliament can never legislate to achieve that legitimate purpose. Ultimately, however, … there may be extreme examples of laws whose legitimate but trivial purpose cannot justify a necessary, but extreme, burden upon the important freedom of trade, commerce, and intercourse.
However, arguably, if a court cannot convincingly perform the analysis at the final balancing stage, the court should recognise the limits of its competence and let these potential cases of laws with legitimate but trivial purposes and necessary but extreme burdens pass – especially if they are highly exceptional. In contrast, there seems to be little dispute that a court can legitimately undertake a means-end analysis of the kind that reasonable necessity analysis entails, in which the relationship between a legitimate end and the means adopted to pursue it is assessed. This test therefore seems to be a promising one for building a new judicial consensus on the High Court for both s 92 and the implied freedom of political communication.
Conclusion
Although proportionality is popular among many courts around the world, its shortcomings are well known: the suitability stage adds little, while the final balancing stage invests an overly large discretion in a court. Australian courts resisted the adoption of structured proportionality for years before finally succumbing in the decision in McCloy in 2015. However, with Gageler J – a long-time opponent of structured proportionality who, alongside Gordon J, described its flaws in the McCloy judgment and subsequent cases – now having become Chief Justice of Australia, there may be a chance to close the unhappy proportionality chapter. It is hoped that the High Court might instead turn to a means-end test of reasonable necessity.
Guy Baldwin is a Lecturer in Law at the University of Manchester.
Suggested citation: Guy Baldwin, ‘A Chance to Close the Proportionality Chapter in Australian Constitutional Law?’ (17 November 2023) <https://www.auspublaw.org/blog/2023/11/a-chance-to-close-the-proportionality-chapter-in-australian-constitutional-law>