This is the second of three posts AUSPUBLAW is featuring on the High Court’s  decision in Clubb v Edwards. Alex Deagon’s accompanying post is here, and Josh Gibson’s accompanying post is here.

In Clubb v Edwards; Preston v Avery [2019] HCA 11 (Clubb), the High Court unanimously rejected two challenges against the validity of provisions in Victorian and Tasmanian legislation which prohibit certain communication and activities within prescribed zones outside abortion clinics: Public Health and Wellbeing Act 2008 (Vic) s 185D; and, Reproductive Health (Access to Terminations) Act 2014 (Tas) s 9(2).

A summary of the issues and judgments of the Court is available here. The focus of this post is the Court’s treatment of structured proportionality as well as the impact that the decision may have on the development of this analytical tool in relation to the implied freedom of political communication (implied freedom).

Proportionality and the implied freedom

High Court approval and application of structured proportionality is a relatively recent phenomenon. In the context of the implied freedom, structured proportionality found expression in McCloy v New South Wales (McCloy). As explained by Shipra Chordia, the majority (French CJ, Kiefel, Bell and Keane JJ) in McCloy imported a structured proportionality analysis into the second limb of the two-limb test set out in Lange v Australian Broadcasting Corporation (Lange) (as modified by Coleman v Power (Coleman)).

In Clubb, the joint judgment (Kiefel CJ, Bell and Keane JJ) began at [5] by setting out the “McCloy test” as comprising the following three limbs:

1. Does the law effectively burden the implied freedom in its terms, operation or effect?

2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

In McCloy, the majority adopted structured proportionality in the third limb of the test formulated in this way. This meant that this limb is to be analysed according to a three-staged approach whereby the Court assesses suitability, necessity and adequacy in balance, with each of those stages to be understood as follows (McCloy at [2], citations omitted):

suitable – as having a rational connection to the purpose of the provision;

necessary – in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;

adequate in its balance – a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

The third stage in the McCloy structured proportionality test (i.e. adequacy in balance) represented a marked departure from the Court’s practice prior to McCloy. The first two stages (suitability and necessity) had been applied in a number of previous decisions (see Dr Murray Wesson’s post summarising the significance of the third stage here).

All three stages of structured proportionality adopted in the third limb in McCloy have been the subject of controversy in the years since. Some of the criticisms of structured proportionality are set out in Shipra Chordia’s examination of the decision in Brown v Tasmania (Brown) (see here), in which the Court by majority applied the McCloy reformulation.

Summary of the joint judgment in Clubb

Despite the unanimity of outcome, the judgments of the High Court in Clubb do not adopt a uniform approach to structured proportionality analysis.

The joint judgment, as noted above, applied the McCloy test and emphasised that structured proportionality provides appropriate guidance to courts when determining the third limb in the McCloy test. In particular, their Honours asserted at [74] that:

[A] structured proportionality analysis provides the means by which rational justification for the legislative burden on the implied freedom may be analysed, and it serves to encourage transparency in reasoning to an answer. It recognises that to an extent a value judgment is required but serves to reduce the extent of it. It does not attempt to conceal what would otherwise be an impressionistic or intuitive judgment of what is ‘reasonably appropriate and adapted’ (citations omitted).

In a separate judgment, Nettle J agreed with the joint judgment’s emphasis on the utility of a structured proportionality analysis ([266]) but applied the second stage of the McCloy proportionality test with some modification.

Criticisms of structured proportionality in Clubb

The separate judgments of Gordon, Gageler and Edelman JJ discussed criticisms of structured proportionality analysis and repeated concerns that their Honours had expressed on previous occasions.

  1. Justice Gordon

 At the commencement of her consideration of structured proportionality, Gordon J noted the following ([390]):

Structured proportionality is a means of expressing a chain of reasoning undertaken to arrive at a conclusion about the validity of a provision said to be beyond power because it burdens the implied freedom of political communication. It is a means of setting out steps to a conclusion – a tool of analysis. It is not a constitutional doctrine or a method of construing the Constitution (emphasis in original).

Her Honour then detailed her reservations as to its application as an analytical tool. Broadly speaking, her Honour’s concerns were that:

  1. the rigidity and formulaic nature of a structured proportionality analysis does not reflect the common law method of legal reasoning ([391]);
  2. structured proportionality is only applicable where there are constitutionally entrenched rights at issue, noting that “not only is the implied freedom of political communication not a right, but the conceptual origins of structured proportionality find no readily identifiable equivalents in the Australian constitutional structure of jurisprudence” ([393]); and,
  3. structured proportionality, as a tool of analysis, is contested conceptually, geographically and in respect of its application and influence ([395]).

Her Honour concluded her analysis at [404] as follows:

The Lange question provides a standard. The more ‘rule-like’ elements that are introduced into that standard, the further you are taken away from that standard’s purpose if the ‘rules’ are applied in a rigid and formalistic way. The rules may impede the development – the filling out – of the content of the standard through the common law method: a case-by-case process of crystallising the meaning of the standard. The benefit of standards, rather than rules, is that standards ‘leave matters open for renewed consideration in subsequent cases, furnishing future decisionmakers with continued, unrestricted space in which to pursue further refinements of the law’. The corollary is that standards can generate uncertainty in their application. But the rigid adoption of an analysis like structured proportionality will not always be the answer to that uncertainty. (emphasis in original, citations omitted)

Her Honour’s judgment was consistent with her comments in Brown. In Brown, Gordon J had criticised a widespread use of structured proportionality, as used in McCloy, stating that the approach ‘does not reflect the common law method of legal reasoning’ (at [476], citing Gageler J in Murphy v Electoral Commission at [109]).

  1. Justice Gageler

Justice Gageler asserted at [158] that:

The three stages of the Lange-Coleman-McCloy-Brown analysis are anchored in our constitutional structure. They are part of our constitutional structure. They are part of our constitutional doctrine.

However, his Honour also had reservations about structured proportionality, noting that it has not been suggested that it is anything more than “an intellectual tool” ([158]). He referred to concerns that he had previously outlined in Brown and McCloy and stated at [160] that “[n]othing is to be gained by me elaborating further on those reservations”. In McCloy, for example, Gageler J had expressed scepticism about the utility of adopting a “generic” proportionality test in the Australian constitutional setting ([143]), noting that he was “not convinced that one size fits all” or, in particular, that standardised criteria, namely “suitability” and “necessity”, were appropriate to be applied to every law which imposes burden on the implied freedom ([142]).

Similarly to Gordon J, his Honour in Clubb emphasised both the discomfort occasioned by imposing a “standardised pattern of thought and expression” on judicial reasoning and the uncertainty of structured proportionality. His Honour noted that “from time to time and from place to place … [structured proportionality has] in practice been influenced by marked differences in institutional settings and in intellectual traditions” ([160]).

Justice Gageler, however, then applied at [161] a “precedent-based calibrated scrutiny”, which his Honour had previously adverted to in McCloy and Brown. His Honour framed this approach in Clubb as follows:

[F]irst, to examine the nature and intensity of the burden which the protest prohibition places on political communication; second, to calibrate the appropriate level of scrutiny to the risk which a burden of that nature and intensity poses to maintenance of the constitutionally prescribed system of representative and responsible government; third, to isolate and assess the importance of the constitutionally permissible purpose of the prohibition; and finally, to apply the appropriate level of scrutiny so as to determine whether the protest prohibition is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with maintenance of the constitutionally prescribed system of government ([162]).

While his Honour acknowledged that the three stages of the McCloy test are “anchored in our constitutional structure”, his Honour stopped short of providing a structured approach to the analysis in the third limb of the McCloy test. Instead, he framed the relevant inquiry as being whether the impugned law can “withstand scrutiny under the final stages of the Lange-Coleman-McCloy-Brown analysis” ([185]). On the one hand, Gageler J’s acceptance that the McCloy test is constitutionally entrenched seems at odds with his Honour’s decision to decline to fully adopt the test and to instead offer an alternative framework for deciding challenges to the implied freedom (which did not include any stage of analysis equivalent to “adequacy of balance”). Arguably, Gageler J’s approach begets the issue that structured proportionality is designed to prevent. That is, a lack of transparency in judicial reasoning in relation to the value judgment that occurs in the “adequacy of balance” stage of the McCloy proportionality formula.  On the other hand, Gageler J’s approach engages, rightly or wrongly, with the criticism that structured proportionality presents too rigid and formulaic a mode of analysis, which works to constrain judicial reasoning and should be adopted with caution.

  1. Justice Edelman

Justice Edelman’s opinion on the utility of the application of a structured proportionality analysis to the implied freedom was not inconsistent with that of the joint judgment. Usefully, his Honour engaged with each of the reservations identified by Gageler and Gordon JJ.

His Honour began by warning at [407] that without clarity and principle in analyses of the implied freedom, the freedom may become an “unlicensed vehicle” by which courts can assess the merits of competing legislative approaches to political communication, or case law on this topic may become a “codeless myriad of precedent, [t]hat wilderness of single instances”. While noting that its value is dependent on the content of each stage of the McCloy test and that it should be applied with restraint, his Honour emphasised at [407] to [408] that structured proportionality ensures clarity and principle in the Court’s analysis of the implied freedom. Justice Edelman also canvassed the criticisms of the uncertainty of the phrase “reasonably appropriate and adapted” in the Lange second limb, serving as a reminder of why proportionality testing was introduced in this context.

In response to Gordon J’s first reservation, his Honour asserted at [469] that “[t]he recognition of proportionality as a structure for decision making is not antithetical to the common law process”. His Honour noted, for example, that the common law categories of contract and torts themselves emerged by “squeezing English rules into models developed elsewhere”.

While accepting at [468] that structured proportionality is an analytical “tool”, his Honour noted that its being such does not make it dispensable. Rather, structured proportionality provides a framework for judicial decision-making that promotes transparency of reasoning, without purporting to supply a mechanical or algorithmic approach to the answer. In any event, his Honour noted that structured proportionality analysis will continue to be the subject of incremental development ([470]).

Discussion and conclusion

The Clubb and Preston appeals gave the High Court an opportunity to revisit some of the differences of opinion as to the propriety and utility of structured proportionality. Those differences, however, remain largely unresolved. Members of the Court in Clubb reiterated past reservations about structured proportionality analysis yet continued to apply variations of it.

Across the judgments, there is acceptance (perhaps at times reluctantly) that some form of structured proportionality analysis is to be applied in considering constitutional challenges relating to the implied freedom. Clubb may be one step toward a change in approach to structured proportionality. The dominant position to date has been to view the three-staged structured proportionality analysis as one tool available to the Court when applying the McCloy test (Brown at [123]-[127] (Kiefel CJ, Bell and Keane JJ) and [277]-[295] (Nettle J)).  The adoption of the McCloy structured proportionality analysis by more than a slim majority in Clubb suggests that the formula has become entrenched in the Court’s application of the McCloy test.

Nonetheless, the decisions in Clubb emphasise that the criticisms made of structured proportionality as a mode of analysis remain alive and in need of resolution. Certainly, the warnings given by particular members of the Court of the need for restraint and caution when using structured proportionality are likely to inform how courts treat any impugned law burdening the implied freedom in future cases. The joint judgment’s rejection of the submission that not all of the proportionality testing in the third limb of the McCloy test should be undertaken in circumstances where the burden on the implied freedom is minimal and imposed to further a compelling legislative purpose (at [61] to [64]) may indicate a reluctance to fragment or selectively apply the structured proportionality formula as set out in McCloy.

As Gageler J noted in his examination of the utility of structured proportionality:

Like all of the numerous competing approaches to the judgment calls required of the High Court in matters arising under the Australian Constitution which have come and gone since 1903, it will be evaluated over time as case law accumulates by reference to its capacity to inform sound and consistent outcomes.

We can expect, as Edelman J observed, that each stage of the McCloy test will continue to be the subject of incremental development and refinement.

Arisha Arif and Emily Azar are solicitors at Arnold Bloch Leibler.

Suggested Citation: Arisha Arif and Emily Azar, ‘Clubb v Edwards; Preston v Avery: Structured proportionality – has anything changed?’ on AUSPUBLAW (3 May 2019) <;-preston-v-avery:-structured-proportionality>