Wesson Profile photoBY MURRAY WESSON

This post is the second in a special series providing a more sustained look at the McCloy v New South Wales judgment, and its impact on the High Court’s approach to proportionality analysis.

In McCloy v New South Wales, a majority of the High Court restated the test in Lange v Australian Broadcasting Corporation, which is applied in determining whether a law is consistent with the implied freedom of political communication. In essence, the approach adopted by French CJ, Kiefel, Bell and Keane JJ asks whether a law that effectively burdens the implied freedom of political communication in pursuit of a legitimate purpose is suitable, necessary and adequate in its balance.

As Professor Anne Twomey notes in a previous post on McCloy, the terms suitability, necessity and adequacy import a ‘German’ approach towards proportionality. This approach has attracted criticism for its potential to place greater and possibly unstructured discretion in the hands of the High Court. This post explores whether the obverse of such a development may be an enhanced role for the concept of deference in Australian constitutional law.

Suitability, Necessity and Adequacy

Each of the elements of the German proportionality test has a distinct meaning, which the majority in McCloy explain as follows. In assessing suitability, the court will ask whether the law has a rational connection to the purpose of the provision. In considering necessity, the question is whether there is an obvious and compelling alternative or reasonably practicable means of achieving the same purpose that is less restrictive of the implied freedom. In determining whether the law is adequate in its balance, the court will make a value judgment, consistently with the limits of the judicial function, evaluating whether the purpose of the law justifies the extent of the restriction on the implied freedom.

Strict proportionality

It is this final step –  sometimes termed strict proportionality – that marks a departure from the High Court’s previous case-law in this area. As recently as the 2014 decision in Tajjour v New South Wales, Crennan, Kiefel and Bell JJ applied the suitability and necessity steps of the proportionality analysis but declined to apply strict proportionality. To do so, their Honours found, may not be appropriate in the context of the implied freedom, where the court’s role is not to assess the loss of a constitutional right but to preserve the system of representative and responsible government. Of course, the High Court has previously applied balancing in attenuated forms (for example, by considering whether a law imposed an ‘undue burden’ on the implied freedom). But the significance of McCloy is the adoption by a majority of balancing as an express step of the Lange test.

The High Court’s hesitation regarding strict proportionality is not difficult to understand. Indeed, there is a vast academic literature exploring the advantages and disadvantages of balancing. The objection most frequently cited is that the rights and interests weighed in strict proportionality are incommensurable. In the absence of a clear methodology for determining how the correct balance should be struck, strict proportionality threatens to place extensive and unstructured discretion in the hands of the judiciary in a manner that is incompatible with the supervisory nature of its jurisdiction. This difficulty is compounded by the fact that, according to Kai Moller, in Germany nearly all cases involving proportionality are decided at the balancing stage. In short, strict proportionality is capable of shifting the focus of the High Court from a narrow consideration of the relationship between means and ends to an expansive jurisdiction more akin to that of the primary, legislative decision-maker.

Proportionality and deference

Given this, it is unsurprising that in many jurisdictions where proportionality has been adopted, such as the United Kingdom, it has been accompanied by an intense academic and judicial preoccupation with questions of deference. As Jeff King notes, the necessary corollary to an expanded jurisdiction – sometimes associated with Etienne Mureinik’s idea of a ‘culture of justification’ – is a theory of restraint. By deference, I am referring to the process, described by Aileen Kavanagh, whereby ‘judges assign varying degrees of weight to the judgments of the elected branches’. The principles that should guide the application of deference are a matter of debate but the concept is most obviously applicable where the primary decision-maker possesses superior expertise and/or superior democratic legitimacy. A further issue is how deference should be incorporated within the proportionality analysis. There is also the fundamental question of whether a doctrine of deference is necessary, in the sense of whether it should be expressed independently of existing public law standards.

In contrast, deference has hitherto received little overt consideration in Australian constitutional law.i Nevertheless, on closer inspection it becomes apparent that concepts such as ‘sufficient connection’ and ‘proportionality’ as they are employed in characterising Commonwealth legislation reserve considerable discretion to the legislature. Indeed, it is well-known that the defence power waxes and wanes depending upon the exigencies facing the Commonwealth. Deference therefore appears to play an implicit role in Australian constitutional law, within existing constitutional law standards and in terms of principles that may or may not receive clear expression. King refers to this as a ‘non-doctrinal’ approach to deference: ‘there should be no doctrine articulated in advance, and … judges should decide upon the appropriate degree of restraint on a case-by-case basis’. This he distinguishes from ‘contextual institutional’ approaches to deference that expressly assign varying degrees of weight to the views of other decision-makers on the basis of clearly articulated principles.

Deference in McCloy

The majority judgment in McCloy largely maintains a non-doctrinal approach towards deference. Deference is mentioned but mainly in order to dismiss the concept: ‘Deference to legislative opinion, in the sense of unquestioning adoption of the correctness of these choices, does not arise for courts’. However, this statement confuses what David Dyzenhaus terms submissive deference (which requires judges to submit to the intention of the legislature) and deference as respect (which entails respectful attention to the reasons offered in support of a decision).ii The latter is not equivalent to judicial abasement but is instead a matter of according degrees of weight to the judgments of the legislature and the executive.

On the other hand, there is also a clear attempt on the part of the majority to temper the steps of the proportionality analysis so as to retain a discretionary area of judgment for the legislature. Suitability, which asks whether the law is rationally connected to its purpose, is already a low intensity form of review. On necessity, the majority emphasise that the alternative means that are less restrictive of the implied freedom must be ‘reasonably practicable’ or ‘obvious and compelling.’ This is to ensure that courts do ‘not exceed their constitutional competence by substituting their own legislative judgments for those of parliaments’. On strict proportionality, the phase of proportionality analysis where judicial decision-making is most likely to collapse into the merits, the approach of the majority is less clear. Their Honours even state that the ‘methodology to be applied in this aspect of proportionality does not assume particular significance’. However, the reference to an ‘adequate’ as opposed to a ‘correct’ balance must be taken to mean that although the courts must make a value judgment they will endeavour not ‘to substitute their own assessment for that of the legislative decision-maker’.

Despite this, lacking from the majority decision is an acknowledgement that, as Gageler J emphasises in his concurring judgment, in practice proportionality is likely to be applied so as to accord ‘varying degrees of latitude … to governmental action’. In other words, the margins that the majority seek to build into the proportionality test are not static but are likely to fluctuate according to the circumstances of particular cases. Given that this is not recognised by the majority, they also do not attempt to identify principles that might guide the intensity with which the proportionality standard is applied.

The majority judgment is therefore broadly in keeping with the non-doctrinal approach to deference that has previously been followed in Australian constitutional law, notwithstanding the potential of strict proportionality to enlarge the discretion of the High Court. To be sure, the non-doctrinal approach has its supporters, most notably TRS Allan. However, it has also been subject to criticism by commentators such as Kavanagh and King. In particular, the non-doctrinal approach provides little structure for the discretion that strict proportionality places in the hands of judges. Furthermore, this discretion may be exercised non-transparently so that there is a loss of accountability. Where the concept of deference is not articulated it is also more difficult to know when deference is due, and to subject the principles of restraint upon which judges rely to criticism and development.

The future of proportionality and deference in Australian constitutional law

It remains to be seen how the proportionality standard articulated by the majority in McCloy will be applied in future cases, especially given the doubts about the majority’s approach expressed by Gageler J, Gordon J and Nettle J in their separate judgments. If the proportionality standard continues to be applied it may be that a more developed concept of deference will emerge. It is in the nature of common law adjudication that it proceeds incrementally and one should not expect a single judgment to provide all the answers. The argument of this post is simply that if the High Court continues to embrace strict proportionality the obverse of this is likely to be a concept of deference. Furthermore, it would be beneficial for such a concept to be clearly and openly expressed. The advantages would be no different to those claimed by the majority for the proportionality test itself: a more ‘structured’, ‘objective’, and ‘explicit’ analysis.

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i See, for example, former High Court judge K.M. Hayne’s dismissal of the concept in ‘Deference: An Australian Perspective’ (2011) Public Law 75.

ii David Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’ in Michael Taggart (ed) The Province of Administrative Law (Hart, 1997) 279, 286.

 

Murray Wesson is a Senior Lecturer at the Faculty of Law, University of Western Australia.

Suggested citation: Murray Wesson, ‘McCloy, Proportionality and the Question of Deference’ on AUSPUBLAW (3 March 2016) <https://auspublaw.org/2016/3/mccloy-proportionality-and-the-question-of-deference>