Craig Lenehan SC provides the first post in our book forum on Shipra Chordia’s Proportionality in Australian Constitutional Law. To see all posts, please click here. Click through for a post by Murray Wesson.

BY CRAIG LENEHAN SC

Shipra Chordia’s excellent book, Proportionality in Australian Constitutional Law, is a fine contribution to this difficult and developing area. As Sir Anthony Mason observes in his foreword, it is “an important addition to the Australian Constitutional Law Bookshelf” (at vi). Notably, the High Court has already begun to engage with Dr Chordia’s work in Palmer (see particularly at [58] (Kiefel CJ and Keane J), [151] (Gageler J) and [197], [199] (Gordon J).

Yet, as readers of this blog will know, the question of whether structured proportionality should, in fact, have a place “in” Australian constitutional law remains the subject of controversy, including amongst members of the Court.

Dr Chordia makes no secret of where she stands on that issue. It is her view that structured proportionality is an appropriate (and preferable) form of analysis in those areas of Australian constitutional law where a “balancing problem” arises. Drawing on the theoretical work of Professor Alexy and an empirical analysis of the approach of the German constitutional court, Dr Chordia identifies the essential characteristics of a balancing problem as follows: (1) there is a conflict between two sets of rights or interests; (2) each of which has the same prima facie normative (here constitutional) force; (3) neither of which is absolute; and (4) at least one of which is incapable of being defined in the abstract.

She applies that theoretical foundation to explain and support the approach taken by the majority in McCloy v New South Wales in the area of the implied freedom of political communication, where structured proportionality was applied as an “analytical tool” (at [72]) to answer the final Lange question. That approach has since been applied by a majority of the Court in a number of decisions in the implied freedom context (as helpfully summarised by David Hume in this forum).

In contrast, and again by reference to her lucid theoretical explanation of the proper place of proportionality, Dr Chordia suggests that it is positively unhelpful to seek to explain the approach to the characterisation of Commonwealth laws in the same way. In saying that, she accepts that some orthodox approaches to characterisation are “proportionality-like” in that they bear some similarity to components of the structured proportionality analysis. However, as Dr Chordia observes, the use of the nomenclature of proportionality in that context may be distracting because what is at issue is not aptly characterised as a “balancing problem”.

Dr Chordia’s concern there is not merely one of nomenclature. Her more fundamental point is that conceptual confusion as to those matters may mean that the analysis “inadvertently slide[s] into a more evaluative form in a context where this would appear inappropriate and likely raise significant concerns regarding judicial legitimacy” (at 129, and see Davis v Commonwealth at 116 (Brennan J)).

At the time of publication of Dr Chordia’s book, it was unclear what part (if any) structured proportionality had to play as regards the question of “justification” in s 92. Further light has now been shed on that area by Palmer, where a majority of the Court (Kiefel CJ and Keane J at [49]-[61], with Edelman J agreeing in a separate judgment at [261]-[268]) indicated that a structured proportionality approach was to be applied in that context. The analysis is applied if it can be established that a law discriminates against interstate trade, commerce or intercourse. At that point, the question is whether that discriminatory burden can be justified. In the view of the majority, that question is to be answered by asking whether the burden is “proportionate” to the non-discriminatory legitimate purpose the law seeks to achieve, with proportionality falling to be determined in a manner similar to that identified in McCloy.

In adopting that position, Kiefel CJ and Keane J directly engaged with a view advanced by Dr Chordia (at 150-151), to the effect that the application of structured proportionality in this context would be inappropriate absent a re-consideration of Cole v Whitfield. Denying that was so, their Honours said (at [58]) that an acceptance of the tests of structured proportionality simply “explicat[ed] the tests for justification, as Betfair No 1 did”. Their Honours also expressly indicated that that included the final (and perhaps most controversial) step in structured proportionality – balancing (at [59], and see also Edelman J at [267] and [275]-[276]).

Of course, in Palmer and in the implied freedom cases, the application of the structured proportionality analysis has provoked some strong responses by Gageler and Gordon JJ. Dr Chordia acknowledges those concerns in the area of the implied freedom and seeks to meet them by reference to her theoretical explanation of the proper place of structured proportionality.

I do not, in this forum, have space to do justice to each of those competing ideas, but I will briefly mention one: an aspect of the critique made by Gageler J and Gordon J is that structured proportionality involves an “algorithm[ic]” or overly rigid approach to difficult and fact sensitive constitutional problems, which may be better addressed by the “elaboration of considerations seen in the light of history, of precedent and of contemporary circumstances…” (Brown v Tasmania at 161 (Gageler J)). Their Honours favour, instead, a less prescriptive approach whereby one simply asks whether the law is reasonably appropriate and adapted to advance its legitimate purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government (ie the terms of the Lange test, as reformulated in Coleman – see eg Brown at [163] (Gageler J)). The point of the structured proportionality test adopted in McCloy was to arm the Court with tools of analysis to approach that question and thereby provide a more transparent and predictable path of reasoning.

Their Honours do not necessarily reject the relevance of the various inquiries undertaken in that analysis, although each has expressed concern regarding the balancing inquiry (see eg McCloy at [336] (Gordon J) and Brown at [160] (Gageler J)). For that reason, the differences between approaches may be narrower than first appears. However, nor do their Honours view such considerations as relevant in respect of every law which effectively burdens freedom of political communication. That was the point Gageler J made in Brown at [164]:

…not every law which effectively burdens freedom of political communication poses the same degree of risk to the efficacy of electoral accountability for the exercise of legislative and executive power. For that reason not every law which effectively burdens freedom of political communication in pursuit of a legitimate purpose demands the same degree of justification, and concomitantly not every law which effectively burdens freedom of political communication needs to be subjected to the same intensity of judicial scrutiny. The measure of the justification needs to be “calibrated to the nature and intensity of the burden”.

To similar effect, Gordon J said this in Clubb at [391]:

Not every law which effectively burdens the freedom of political communication poses the same degree of risk to the efficacy of the system of representative and responsible government which the Constitution creates and requires. Not every law which effectively burdens the freedom of political communication, but which is directed to a legitimate end, demands the same degree of justification. Not every law which effectively burdens the freedom of political communication needs to be subjected to the same level of scrutiny. Not every law which effectively burdens the freedom of political communication is able to be, or should be, analysed by a rigid, “one size fits all”, approach.

Dr Chordia acknowledges the strength of that criticism. Her proposed solution is twofold: first, she emphasises that structured proportionality preserves sufficient flexibility at each stage of the analysis to permit the exercise of judicial discretion to respond to the circumstances of particular cases, including by applying those tests at higher or lower levels of intensity. Secondly, she proposes coupling the application of proportionality with a robust theory of judicial restraint, which (she says) ought also be clearly articulated with reasons.

The point about flexibility is plainly correct. It is no doubt one of the reasons that the analysis has been successfully transplanted well beyond its origins in Prussian administrative law. However, the current Australian approach to structured proportionality, particularly evident in the Court’s discussion of necessity testing, does not fully reflect that flexible approach (a point which Dr Chordia also acknowledges). It rather insists that any such alternative be “obvious and compelling”. The reasons for that are not difficult to discern. As Edelman J pointed out in Clubb at [478]:

It is… necessary for an effective operation of the constitutional system of representative and responsible government for Parliament to be able to make choices about the best policies to pursue for the implementation of legislation. Parliament is generally in a better position than the courts to assess whether alternative means that have a less restrictive effect on the freedom might not achieve the legislative purpose as significantly or effectively. As O’Regan J and Cameron A-J powerfully expressed this point in the Constitutional Court of South Africa [in S v Manamela 2000 (3) SA 1 (CC) at 41 [95]], “[w]hen a [c]ourt seeks to attribute weight to the factor of ‘less restrictive means’ it should take care to avoid a result that annihilates the range of choice available to the Legislature”. This has as much resonance in our constitutional context. Hence, in assessing whether the means adopted was reasonably necessary, it is necessary to ask whether an alternative is “obvious and compelling”.

That does involve a notion of judicial restraint which is clearly articulated in the reasoning. But it does not involve the degree of flexibility for which Dr Chordia contends.

It is true that the members of the Court applying structured proportionality have accepted that the sufficiency of the justification required for a burden on the implied freedom should be thought to require some correspondence with the extent of that burden (see eg Brown at [118]). However, that, it would appear, is merely recognition of the fact that such a burden may require more by way of justification only at the balancing stage of proportionality analysis (Brown at [121]). Members of the Court favouring structured proportionality have otherwise denied that particular classes of laws automatically attract stricter scrutiny or that the tests to be applied could involve differing levels of scrutiny (Libertyworks at [49] (Kiefel CJ, Keane and Gleeson JJ).

The potential problem arising from that approach is two-fold. As Gageler J and Gordon J observe in the passages extracted above, it may mean that one engages in analysis which is simply unnecessary (a problem of “operational over-inclusiveness”). At the other end of the spectrum, Dr Chordia points to the fact that the rigid application of the terms of the existing tests, particularly the necessity test, may lead the Court to apply an overly restrained approach which fails to recognise real threats to the constitutionally prescribed system of government (a problem of under-inclusiveness). That potential problem is not necessarily addressed at the balancing stage, given that that test involves a somewhat formidable burden on the challenger: a law is to be regarded as adequate in its balance unless the benefit sought to be achieved by the law is manifestly outweighed by the adverse effect on the implied freedom (Libertyworks at [85], referring to Comcare v Banerji at [38]).

Such issues will no doubt be canvassed in argument in future matters and in the second edition of Dr Chordia’s book.

Craig Lenehan SC is a barrister on 5th floor St James Hall.

Suggested citation: Craig Lenehan, ‘Book forum: Craig Lenehan’ on AUSPUBLAW (18 August 2021) <https://auspublaw.org/2021/08/book-forum-craig-lenehan/>