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?
As observed by The Hon Sir Anthony Mason in his Foreword, Chordia’s book: “is the product of wide-ranging research and scholarship, aided by a clear understanding and explanation of the complex issues which arise. This book provides an illuminating account of structured proportionality, its strengths and weaknesses. As such, the book is an important addition to the Australian Constitutional Law bookshelf.” See full Foreword and Table of Contents here.
CONTENTS
Foreword by the Hon Sir Anthony Mason AC KBE GBM QC Acknowledgments About the Author Table of Cases Table of Statutes
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 Index
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Published 21 September 2020
Publisher The Federation Press
Hardback/272pp
ISBN 9781760022426
Australian RRP $120.00
International Price $110.00
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Law - Constitutional
Law - Legal Interpretation

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