I-CONnect Symposium on “Constitutional Boundaries” — Proportionality and the Boundaries of Borrowing

[Editor’s Note: This is the second entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, and the first entry is available here.]

—Adrienne Stone, Kathleen Fitzpatrick Australian Laureate Fellow, Redmond Barry Distinguished Professor, Director of the Centre for Comparative Constitutional Studies, The University of Melbourne, Melbourne Law School

Australian constitutional law is having something of a proportionality moment. At last, and much later than most comparable jurisdictions, the High Court of Australia has, by majority, adopted a ‘proportionality test’ as a means of determining limits on constitutional protection for political communication. But far from signalling the end of an element of Australia’s constitutional exceptionalism, the decision has immediately produced more controversy.  In a more recent case, there are some indications of a retreat in the High Court with some members of the Court explicitly rejecting proportionality while others appear to have confined its use by declining to use the test in a closely related context.

The source of the judicial reservation about lies in the deep association between proportionality and constitutional rights. As is well known, the Australian Constitution is principally structural and federal in its scope and contains sparse, if any, rights protection, reflecting a marked preference for political constitutionalism in that domain. (The constitutional protection conferred on political communication is among the few exceptions and even on this score the High Court has been disinclined to refer to the doctrine as a constitutional ‘right’ stressing rather its structural and institutional purpose).

The reservation is well expressed by (now former) Chief Justice Gleeson:

There is a danger that uncritical translation of the concept of proportionality from [other] legal context[s] … to the Australian context could lead to the application in this country of a constitutionally inappropriate standard of judicial review of legislative action. Human rights instruments which declare in general terms a right, such as a right to vote, and then permit legislation in derogation of that right, but only in the case of a legitimate objective pursued by means that are no more than necessary to accomplish that objective, and give a court the power to decide whether a certain derogation is permissible, confer a wider power of judicial review than that ordinarily applied under our Constitution. They create a relationship between legislative and judicial power significantly different from that reflected in the Australian Constitution. (Emphasis added)

This view invites several responses which will be the subject of a longer paper but in the confines of this post I will make only three points. First, proportionality, though deeply associated with rights, is not necessarily so associated.  Proportionality find it roots in German administrative law and, viewing proportionality globally, there are a range of non-rights contexts in which it is deployed. These include prominently, the administrative law of the European Union and even there are aspects of Australian constitutional law (pre-dating the McCloy) in which proportionality analysis is familiar.

Second the varied contexts in which proportionality is used suggests that it can be conceived in largely methodological terms, as a means of comparing value or interest protected by a constitution with a law pursuing a governmental objective. Thus reduced to its conceptual elements comprising a test of legitimacy (or sufficiency of importance) of the end pursued by the challenged law;  combined with a test of the connection between the end pursued by the challenged law and the means used to pursue it; and an all things considered ‘balancing’ of the cost incurred to a protect right (or interest) as against the end pursued by the law, proportionality need not embed any particular conception of, nor ascribe a particular weight to, the value or interest it protects.  Moreover, as many scholars have noted, the intensity of proportionality can vary in the hands of the judges applying it and may even vary, within a system of law, from context to context. 7

Viewing proportionality as a method opens the way for its adoption in to Australian law and the High Court of Australia clearly had this in mind. In an apparent instance of the ‘critical engagement’ method recommended by Vicki Jackson, the Australian High Court modified the final step of the test (balancing or ‘proportionality in the strict sense’) to require an  assessment of whether the challenged law is ‘‘adequate in its balance’, which it specified was to be applied ‘consistently with the limits of the judicial function’.

Indeed, this account of proportionality surely explains its unparalleled success as a constitutional export. It is precisely because of its relative emptiness and adaptability that it has successfully migrated to so many context.  But, and this is my third point, it would be a mistake to think that proportionality brings nothing with it by way of substantive commitments.  Although principally a method of analysis rather than a substantive principle, the method brings with it some commitments of substantive significance.  Indeed, within its flexibility and context-sensitivity lies a distinctive ethic:  a preference for decision making that can respond to the exigencies of a particular case and allows for a sensitive and transparent balancing of the complexities posed in striking a balance between a constitutional value or interest and a challenged law. This ethic comes at a cost of a degree of certainty and predictability in the law can be brought by rules that are more specific in their application.

Of course, in principle even this feature of proportionality could be adapted. Frederick Schauer, for instance, has shown how less flexible rules and more flexible standards can converge over time.  So in principle proportionality might be a temporary form of analysis that overtime will generate and ultimately be replaced by stricter and more specific rules. Vlad Perju’s suggestion that an American form of proportionality might explicitly reference the doctrine of stare decisis suggests one way that proportionality might adapt to a legal culture with a preference for more rule-like standards of review.

There may be pressure in Australia towards this kind of adaptation of proportionality. (For an expression of concerns along these lines see Justice Gageler’s decision here) The legalism of Australian legal culture, strongly committed to the idea that the law provides an external standard of correctness by which to judge judicial decision, sits uncomfortably with proportionality’s flexibility and context sensitivity.  It remains possible, then, that the Australian courts rather than abandoning proportionality might seek to contain its flexibility with an accretion of more specific and more determinate rules. At this point, however, we would need to ask whether these courts are indeed ‘borrowing’ anything at all. If proportionality becomes devoid even of its minimally substantive commitment to flexibility and context-sensitivity, Australian proportionality would be proportionality in name only.

Suggested Citation: Adrienne Stone, I-CONnect Symposium on “Constitutional Boundaries” — Proportionality and the Boundaries of Borrowing, Int’l J. Const. L. Blog, Apr. 24, 2018, at: http://www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutional-boundaries-proportionality-and-the-boundaries-of-borrowing