Proportionality in Australian Constitutional Law By Shipra Chordia

Selected as the winner of the 2019 Holt Prize by The Hon Professor William Gummow AC, The Hon Justice Alan Robertson and Ruth Higgins SC, Proportionality in Australian Constitutional Law considers the concerns that have been raised regarding the doctrine of proportionality and how these might be addressed. Since its first introduction into Australian constitutional law, there have been debates regarding its use. Recent cases, in particular, have seen a splintering on the High Court, with some judges expressing support for proportionality as a useful tool in certain contexts, and others expressing deep reservations about it. Against this background, Chordia proposes a theoretical framework for proportionality, and uses it to explore a critical question: when, if at all, is proportionality an appropriate analytical tool in Australian constitutional adjudication?

CONTENTS

CHAPTER 1. INTRODUCTION
I. Proportionality in Global Constitutional Law
II. Proportionality in Australian Constitutional Law

CHAPTER 2. PROPORTIONALITY AS A CONCEPT
I. Proportionality’s Classical Foundations
II. Proportionality in German Public Law
III. Proportionality in Global Constitutional Law

CHAPTER 3. STRUCTURED PROPORTIONALITY AS AN ANALYTICAL TOOL
I. The Basic Law
II. Post-War Jurisprudence
III. Constitutional Assumptions Giving Rise to Balancing
IV. Balancing and Structured Proportionality
V. Incommensurability

CHAPTER 4. STRUCTURED PROPORTIONALITY AND JUDICIAL RESTRAINT
I. Judicial Restraint and the Origins of Structured Proportionality
II. Variable Intensities of Review

CHAPTER 5. ALTERNATIVES TO STRUCTURED PROPORTIONALITY
I. The First Amendment and the Balancing Problem
II. Formalism
III. Ad Hoc Balancing
IV. Tiered Review Based on Categorisation

CHAPTER 6. PROPORTIONALITY IN THE CHARACTERISATION OF LAWS
I. The ‘Purposive’ Powers
II. ‘Proportionality’ as a Constraint
III. Various Uses of ‘Proportionality’ in Characterisation
IV. Explaining Proportionality in Characterisation

CHAPTER 7. PROPORTIONALITY AND THE FREEDOM OF INTERSTATE TRADE AND COMMERCE
I. Theories of Section 92 Before Cole v Whitfield
II. Cole v Whitfield and Beyond
III. Competing Modern Approaches to Section 92

CHAPTER 8. PROPORTIONALITY AND THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION
I. Early Implied Freedom Cases
II. Modern Approaches
III. Addressing Criticisms of Structured Proportionality
IV. When is Structured Proportionality not Appropriate

CHAPTER 9. THE FORMS OF ‘PROPORTIONALITY’
I. Means Ends Analysis
II. Ad Hoc Balancing
III. ‘Smoking Out’ a Law’s Purpose
IV. Reasonably Appropriate and Adapted
V. Structured Proportionality

REFERENCES