BY SHIPRA CHORDIA

On 18 October, the High Court handed down its judgment in Brown v Tasmania [2017] HCA 43.  The plaintiffs – Dr Bob Brown and Ms Jessica Hoyt – successfully argued that certain provisions of the Workplaces (Protection from Protestors) Act 2014 (Tas) impermissibly burden the implied freedom of political communication. Both plaintiffs had been charged under the Act as a consequence of protesting in the Lapoinya Forest in North West Tasmania, although those charges were dropped after the constitutional challenge to the laws was commenced.

By a 5-2 majority (Gordon and Edelman JJ dissenting), the High Court held invalid provisions of the Act which, inter alia, prohibited protestors from entering or obstructing business activity in certain forestry areas, authorised police to direct protestors to leave those areas, and made failures to comply with police directions criminal offences. By a 6-1 majority (Edelman J dissenting), the Court further held that a provision which made it an offence to re-enter an area within four days of being directed to leave by a police officer also impermissibly burdened the implied freedom of political communication. An excellent summary of the five separate judgments can be found here.

The case is significant on at least three fronts. The first is that it has direct implications for the future of environmental protests in Tasmanian forests, which to date appear to have been highly successful in bringing about political action. As the agreed facts in the special case and a number of the judgments pointed out, 37 separate legislative or regulatory amendments affording enhanced environmental protection have been made following on-site protests in Tasmania since 2006. The invalidation of the provisions in question in Brown means that these types of protests can, at least for now, continue on forestry lands, subject to prohibitions found in other laws.

The case may also have implications for the validity of similar legislation passed or pending in other jurisdictions, including New South Wales’ Inclosed Lands Protection Act 1901 (as amended by the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016) and Western Australia’s Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015. These legislative amendments have been criticised by the Law Society of New South Wales and the Law Society of Western Australia, respectively, for disproportionately expanding police powers and interfering with the ability of people to engage in political protests. Indeed, it appears that a potential challenge to the New South Wales laws may already be under serious consideration.  

Finally, the case offers us further insight into the views of the bench as to the appropriateness of structured proportionality as an aid to deciding cases which raise the implied freedom of political communication as a limit on exercises of legislative power. The trajectory of structured proportionality in recent cases has not been unidirectional. After having found acceptance, albeit by a slim majority, in 2015 in McCloy v New South Wales, most of the bench declined to deploy it in the next case concerning the system of representative and responsible government, Murphy v Electoral Commissioner. In this most recent instalment, the method has once again found majority favour, with Nettle J concurring with the joint justices – Kiefel, Bell and Keane JJ – in adopting and applying it.

The focus of this post is on this third area of significance, and to that end it has three primary aims. The first is to explain why it is that structured proportionality, a mere analytical method, is generating such interest and controversy. This second is to consider the modification to McCloy structured proportionality that has been adopted by a majority in Brown. The third is to examine the objections to structured proportionality raised by Gageler and Gordon JJ in their respective judgments in the case.

Why do we care about an analytical method?

To most people, structured proportionality appears to be just an analytical tool. Indeed, a number of justices have described it in these very terms. For many, then, it is somewhat perplexing as to why a mere analytical tool is generating such controversy both on the High Court and beyond. The answer is discoverable upon understanding the way in which proportionality interacts with critical questions regarding the scope of the powers exercised by our key institutions of government.

Ordinarily, in our constitutional system, it is the realm of democratically-elected legislatures to make value judgments. Members of parliaments are directly accountable to the people at regular elections, have access to a broad range of expert and lay opinions on polycentric issues, and have (at least in theory) the time to debate and deliberate upon these issues to reach a position which properly balances the competing interests at stake. In making difficult value judgments, parliaments are therefore considered to possess greater legitimacy and competency than institutions of government which lack these features, like courts.

Nonetheless, federal Parliament’s powers are limited by the Australian Constitution. And it has been accepted as axiomatic that it is the judiciary – in exercising its supervisory function – which must decide the limits of Parliament’s powers in concrete cases brought before it. In implied freedom cases, this function is extended to exercises of state legislative power too. In such cases, the court’s task is to decide whether the challenged exercise of legislative power has gone so far that it impermissibly incurs into the area protected by the freedom.

Some argue that this task can be performed without resorting to making value judgments. They argue that the judiciary should adhere to legalistic approaches. Traditional common law approaches will ensure that the courts do not venture too far from their constitutional role and into areas where they lack relative legitimacy and competency, the argument runs.

Others contend that in order to decide implied freedom cases, the courts must decide difficult questions, like: what do we mean by representative and responsible government, which is said to be the constitutional underpinning of the freedom, in the context of a particular case? How much incursion into the freedom is too much? By reference to what standard? To answer these questions, and ultimately decide whether a law has impermissibly burdened the freedom, it is said that courts cannot escape needing to make factual and normative judgments.

Structured proportionality is an analytical approach which embraces this second view but attempts to structure the decision-making process. The method directs judicial inquiries in some ways, but leaves it to the discretion of the courts to make factual and normative judgments in others. Ultimately, we might say that structured proportionality embodies a compromise. It offers a method that can, arguably, be used to address institutional concerns regarding value-based decision-making by the courts without pretending that such decision-making is not, at times, necessary in the performance of the judicial function.

In embodying this kind of compromise, structured proportionality is open to criticism from two directions. Some think that it is too constrictive of judicial decision-making, commanding a ‘one-size fits all’ approach which places an unjustifiable straightjacket on judicial reasoning. Others argue that it offers insufficient guidance for principled decision-making and that it therefore invites the judiciary to step into the legislative sphere. Until these fears are allayed, which may only occur as a consequence of reflective and cautious application of structured proportionality in a succession of cases, the method is likely to continue to generate interest and controversy.

Modification to structured proportionality in Brown

Before moving on to consider in more detail the specific lines of objection to structured proportionality raised in Brown, it may be useful to briefly consider the modification to McCloy-style analysis which was advocated by the Commonwealth (intervening) in the case. In McCloy, a majority comprised of French CJ, Kiefel, Bell and Keane JJ held that structured proportionality could be used to guide and structure the application of the second limb of the test set down in Lange v Australian Broadcasting Corporation. The test established in Lange, and later modified in Coleman v Power, proceeded as follows:

  1. Does the impugned law burden the implied freedom of political communication?
  2. If yes, is the impugned law reasonably appropriate and adapted to achieving a legitimate end in a manner compatible with the system of representative and responsible government prescribed by the Constitution?

The majority in McCloy, considered that the Lange test could be further structured in the following way:

  1. Does the impugned law effectively burden the implied freedom of political communication in its terms, operation or effect?
  2. If yes,
    1. Is the purpose of the law and the means adopted to achieve that purpose legitimate in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?
    2. If yes, is the law suitable, necessary and adequate in its balance?

In Brown, the Commonwealth argued that the italicised words above should be removed because they required an assessment of the compatibility of the means adopted to achieve a particular purpose before structured proportionality analysis had even been undertaken. Such an assessment, the Commonwealth contended, would be impractical. Chief Justice Kiefel, Bell and Keane JJ, with Nettle J concurring, considered the point well made and accepted the modification.

In my view, this is a welcome modification. However, there remain unanswered questions about compatibility testing. In what circumstances will justices applying the Lange/McCloy/Brown formula find that a law is pursuing an illegitimate purpose? What is meant by legitimacy here? What is meant by ‘compatibility’ in circumstances where a law has already been found to have burdened the implied freedom (and therefore representative government) in the immediately preceding test? Does this test add anything meaningful to the overall analysis? And, if it is necessary to test the ‘legitimacy’ of purpose before embarking on structured proportionality, surely this should be assessed as against the Constitution as a whole, rather than just the aspect of the Constitution that is represented by the formula ‘representative and responsible government’? This last point may, however, raise considerable complexities and inconsistencies in application to Commonwealth versus state laws.

In its submissions, the Commonwealth suggested that compatibility testing should be conducted by asking whether the purpose of a law is not incompatible with the system of representative and responsible government prescribed by the Constitution. Were it accepted, this formulation suggests that the test would be conducted at a very high level of deference, with only the most extreme types of incursions into the system invalidated at this stage. Arguably, this would at least give the test some work to do, even if only in very rare cases. The formulation was not, however, adopted in Brown.

Resistance to structured proportionality

I turn now to consider the objections to structured proportionality which appear in the judgments of Gageler J and Gordon J in Brown. These objections can be grouped under three broad themes: that the method is suited to an individual rights context only; that it is too formulaic; and that it does not provide principled guidance in making value judgments.

  • Is structured proportionality only applicable where there are constitutionally-entrenched individual rights at issue?

Structured proportionality emerged in its modern form in the constitutional adjudication of the German Federal Constitutional Court. From there it has spread to constitutional jurisdictions around the world, almost always being applied in the context of constitutional rights operating as limitations on state action. It would seem logical then to assume – as it is by many – that structured proportionality only has application within the framework of rights adjudication. Without a constitutional bill of rights in Australia, and with the High Court repeatedly emphasising that the implied freedom is not an individual right, it would seem to follow that structured proportionality has no role to play in Australian constitutional law.

It is, however, important to note that structured proportionality as it emerged in the constitutional law of Germany had antecedents in a context where the analysis did not involve constitutionally-entrenched rights: the administrative law of Prussia in the late 19th century. Indeed, the tests that make up structured proportionality were first theorised as a method by which the judiciary could constrain the growing and increasingly powerful administrative state in the absence of a meaningful rights-based constitution. This suggests that while structured proportionality might be helpful in modern rights adjudication, its application is not limited to that context.

This view gains further support when we examine the precise rights-based context in which structured proportionality is usually applied. Structured proportionality only plays a role once it is accepted that a given ‘right’, even if constitutionally entrenched, does not have any special status vis-à-vis other social interests embodied in, for example, legislation. That is, the view is taken that the right does not operate absolutely like a prima facie ‘trump’ over other legislative interests. If it did operate in this way, then the courts would have little work to do other than to define the right’s scope and declare its absolute operation within that scope. On the other hand, where a right is considered non-absolute and it comes into conflict with some other non-absolute right or interest, the courts must balance the competing rights or interests in order to resolve the conflict. It is in carrying out this balancing exercise that structured proportionality offers some assistance. In this sense, non-absolute rights and systemic constitutional interests like the implied freedom operate in exactly the same way. The High Court has repeatedly emphasised that the implied freedom does not operate absolutely. Thus, it must be balanced against competing legislative interests in order to decide questions validity; a task to which structured proportionality is readily suited.

There is a further, and critical, similarity between constitutionally-entrenched individual rights and the implied freedom. Both find their normative justification in higher-order values that are fluid in scope and concept. As such, they cannot be defined in the abstract. For example, the implied freedom draws its justification from the amorphous concept of ‘representative and responsible government’, which no one has successfully defined without reference to concrete factual and normative considerations. This is why definitional approaches that may be well suited to application in most areas of the common law do not work well here. It is also why structured proportionality, which provides appropriate space to take into account the relevant factual and normative considerations raised by a concrete case, should not be dismissed as an inappropriate method in this context.

  • Is structured proportionality too formulaic or algorithmic?

Structured proportionality requires courts to engage in particular analytical thought processes, and it also requires that those thought processes be undertaken in a designated sequence. To a degree, it is, therefore, formulaic, and it is understandable that some judges might consider such a method unduly restrictive of judicial discretion. However, it is possible to make a few further observations which may temper the force of this concern.

The first is that the analytical processes which make up structured proportionality are not expressed in terms that demand mathematical precision in a manner which warrants labelling as algorithmic or mechanical. Rather, the proportionality tests are for the most part heuristic and intuitive. Indeed, they are so intuitive that even jurisdictions, such as Australia, which have historically displayed scepticism towards structured proportionality, have developed their own domestic versions of its tests. For example, the second limb of the two-stage test developed in Lange v Australian Broadcasting Corporation, as restated Coleman v Power, has always involved asking questions like ‘is this law necessary?’ and ‘is this law justified?’ As has been argued by Professor Adrienne Stone (see here and here), the logical processes by which those questions are answered are very similar, if not identical, to the ‘necessity’ and ‘adequate in the balance’ stages of proportionality analysis. Indeed, it is very difficult to imagine conceptual tests potentially relevant to deciding implied freedom cases which are not already captured by structured proportionality.

Second, the order in which structured proportionality proceeds plays an important role in adding to the legitimacy of the method. The tests proceed from the most legalistic and least value-laden (suitability) to the least legalistic and most value-laden (strict proportionality). That order of analysis means that courts can – just as the Canadian Supreme Court often does – avoid engaging in a level of value-laden decision-making that may be unnecessary in the circumstances of the case at hand. If a case can be decided on more legalistic grounds then this, in turn, lessens concerns regarding the legitimacy and competency of the courts engaging in value judgments.

Third, the predictability of the structured proportionality tests serves a higher purpose. It allows judges, parties and those scrutinising judgments after the fact to know what to expect. Little energy has to be expended by judges expounding the precise analytical approaches they have applied, less academic ink needs to be spilt scrutinising the veracity of the claims made by judges purporting to have adopted particular analytical approaches, and a shared understanding can be developed between judges and legislators regarding the manner in which the latter’s laws will be judicially tested. Our collective gaze can, therefore, shift from form to substance. The greater and more discerning attention this will bring to the actual value judgments being made can only further serve to quell legitimacy concerns.

  • Is structured proportionality not principled enough?

From another direction, the concern is expressed in Brown that structured proportionality, particularly at the last stage, requires judges to engage in a value judgment without providing any principled guidance as to how to conduct that exercise. There are no pre-set criteria for determining the importance of a legislative purpose, or for assessing the relative importance of that purpose as against the importance of the implied freedom. Any comparison becomes a particularly difficult task when the impugned legislation is aimed at achieving some end that is not directly connected with the system of representative and responsible government. In such circumstances, the issue of the incommensurability between the two competing interests at stake really does pose a critical problem.

Structured proportionality does not solve this problem. Indeed, it is arguable that there is no rational way of solving it. That is not to say, however, that legislators and judges alike do not undertake this kind of exercise regularly. Indeed, it has long been argued that the definition of many common law private rights has come about by courts undertaking a balancing of incommensurable competing interests over successive cases.

Even so, some of the features of structured proportionality can serve to lessen concerns associated with courts conducting this kind of balancing exercise in the constitutional context. As mentioned above, the final stage of structured proportionality is only required if the impugned provisions have successfully passed the earlier tests. Thus, in many cases the concerns associated with direct value balancing will not arise. Furthermore, when it is necessary, structured proportionality provides a framework in which balancing is encouraged to be carried out openly, not behind obfuscated reasoning or in the absence of any reasoning at all. Yes, judges may need to make value judgments, but they will also need to give reasons as to why a higher normative value has been attached to one competing interest as against the other. These reasons can then be scrutinised.

Finally, structured proportionality is flexible enough to operate at variable intensities of review. At the last balancing stage, this means that where the nature or degree of burden placed on the system of representative and responsible government warrants greater scrutiny, courts can demand that a more compelling justification be offered for the incursion into the implied freedom. That is, the importance of the purpose pursued by the law must be so compelling that it justifies the intrusion. On the other hand, a burden that is less suspicious in nature or degree may be justifiable on a less compelling basis. In such circumstances, the importance of the law’s purpose relative to the intrusion into the implied freedom need not be as forceful a proposition. Restrained in this way, even at this most value-laden stage of analysis, the courts would be limited to carrying out their supervisory function in a manner that is attuned to the factual and normative circumstances of the case at hand.

Such an approach would not be dissimilar to the process Gageler J has referred to in McCloy and Brown as ‘calibration’. In Gageler J’s view, where an impugned law imposes a burden which is suspect in nature or degree, then the law will require close scrutiny from the courts. To be valid, the law must be ‘reasonably necessary’ and supported by a compelling justification. The application of these tests does not appear to differ substantially from structured proportionality. On the other hand, where a law is not suspect, then on Gageler J’s view, it will be sufficient to establish validity that there is a rational connection between the law and the purpose it is seeking to achieve. That is, the analysis would stop at the equivalent of ‘suitability’ testing rather than proceeding to the counterparts to the final two stages of structured proportionality. Although this appears to be a key difference between the two approaches, on closer examination it is largely one of form rather than substance. If a burden is not in some way suspect, then it is unlikely to fall foul of the necessary and adequate in the balance stages of analysis in any event. This is particularly so if the intensity of the review conducted within those stages is varied to match the nature and degree of the burden.

Of course, competing interests and their relative normative value can never be balanced with mathematical precision and this will always remain a largely heuristic exercise. However, by demanding that courts at least articulate the reasons why they have balanced the competing interests in the way that they have, and by encouraging courts to be reflective about the level of scrutiny they are applying, a degree of rationality and restraint can be introduced which might otherwise be absent if the analysis were left to unfold in an ad hoc manner.

Conclusion

Despite strong resistance from some quarters, Brown v Tasmania has confirmed that structured proportionality is likely to remain a feature of constitutional adjudication concerning the implied freedom of political communication for some time to come. While there may be further refinements to the High Court’s jurisprudence, overall, structured proportionality is an appropriate analytical tool in this context and the primary objections to its application are capable of being addressed.

Shipra Chordia is an Australian public lawyer, sessional lecturer and doctoral candidate at the University of New South Wales.

Suggested citation:  Shipra Chordia ‘The Trajectory of Structured Proportionality in Implied Freedom of Political Communication cases: Brown v Tasmania’ on AUSPUBLAW  (2 November 2017) <https://auspublaw.org/2017/11/the-trajectory-of-structured-proportionality/>