The ‘March of Structured Proportionality’: The Future of Rights and Freedoms in Australian Constitutional Law
Dane Luo
08.04.2022
AUSPUBLAW congratulates Dane Luo on winning the 2021 Sir Anthony Mason Constitutional Law prize, and is pleased to publish an adapted version of his winning essay.
Following a ‘march of structured proportionality’ globally, the High Court adopted, in the 2015 McCloy v New South Wales (2015) decision, the framework of ‘suitability’, ‘necessity’ and ‘adequacy in the balance’ to a legitimate end to assess the proportionality of laws that burden the implied freedom of political communication (implied freedom). Initially, the Court was hesitant to expand this new framework to other constitutional rights and freedoms and expressed doubt as to its applicability to evaluating laws that violate the constitutional mandate that members of Parliament be ‘directly chosen by the people’ (ss 7 and 24) and the acquisition of property on just terms (s 51(xxxi)). However, in 2021, the Court extended the framework to assessing laws that burden the freedom of interstate trade, commerce and intercourse (s 92).
This begs the question: what will happen next? Could structured proportionality be further extended to other constitutional guarantees? In this post, I will explain that there is scope for further expansion to other constitutional guarantees, but the future development of structured proportionality will likely be influenced by the Court’s changing composition. I will also explore whether the Court will use structured proportionality in cases involving ss 116 (religious freedom) and 117 (discrimination on the basis of state of residence), and laws incidental to the nationhood power, which all involve tests laid out prior to McCloy.
I Development of Structured Proportionality
The adoption of structured proportionality was championed by Kiefel CJ. In pre-McCloy decisions, her Honour decried the nebulous ‘appropriate and adapted’ standard, saying it is ‘cumbersome and inexact’, offers ‘no guidance’ and can ‘obscure’ the Court’s process (Monis v The Queen (2013) at [283], [345]). Justice Kiefel proposed the adoption of three ‘sub-principles’ from German jurisprudence – suitability, necessity and proportionality in the strict sense – to create a ‘more rigorous and disciplined analysis’ (Rowe (2010) at 140–1) and suggested that German principles of proportionality may be judicially developed in relation to the implied freedom and s 92. As David Hume explained, Kiefel J’s vision of structured proportionality slowly gained more adherents from among the members of the Court.
The adoption of structured proportionality eventually happened in McCloy when a majority of the Court (Gageler, Nettle and Gordon JJ dissenting) adopted structured proportionality for the first time in considering laws that burden the implied freedom. Despite sustained dissents from Gageler and Gordon JJ in every subsequent decision, and submissions to abandon McCloy, structured proportionality has been consistently applied by a ‘solid majority’ in all five subsequent implied freedom matters – Brown v Tasmania (2017), Unions NSW v New South Wales (No 2) (2019), Clubb v Edwards (2019), Comcare v Banerji (2019) and LibertyWorks v Commonwealth (2021). Justice Nettle, who applied the ‘reasonably appropriate and adapted’ standard in McCloy, later embraced structured proportionality from Unions NSW (No 2) onwards. Justice Edelman recently authored an enthusiastic defence of the framework in LibertyWorks (at [200]) and even applied it to considering compatibility with Ch III (Minister for Home Affairs v Benbrika (2021) at [226]). Thus, it is now settled that structured proportionality is applied in the implied freedom context, and was recently extended by a three-Justice majority to the s 92 freedom in Palmer v Western Australia (2021).
II The Future of Structured Proportionality Testing: High Court Composition
Following the recent retirements of Bell and Nettle JJ, who were proponents of structured proportionality, the position of the Court on structured proportionality has arguably become less clear. Justice Steward suggested that the implied freedom does not exist (LibertyWorks at [298]–[304]). Nevertheless, his Honour accepted that the stages of structured proportionality can be ‘used as analytical tools to test whether a given law is reasonably appropriate and adapted in the advancement of its purpose’ (at [247]). Justice Gleeson, when she was a Federal Court judge, cautioned that structured proportionality should not be imported ‘in a wholesale fashion into every area of constitutional law’ (while accepting that she was bound by it in respect of the implied freedom) (Chief of the Defence Force v Gaynor (2017) at [92]). Recently, Gleeson J joined Kiefel CJ and Keane J in applying structured proportionality to the implied freedom in LibertyWorks. Therefore, whilst Steward and Gleeson JJ have applied structured proportionality in the context of the implied freedom, it is unclear whether their Honours would extend it to other constitutional guarantees.
The impending retirements of the Court’s fiercest defenders of structured proportionality, Kiefel CJ and Keane J, in 2024 and 2022, respectively (ie, when they reach the constitutionally-mandated retirement age), could affect the Court’s jurisprudence. In contrast, the strongest opponents, Gageler and Gordon JJ, may remain on the Court until 2028 and 2034, respectively. Thus, if the new appointees replacing Kiefel CJ and Keane J are opposed to structured proportionality, there may be a new majority who disfavour the framework.
The Court has emphasised that a change to its composition is not a basis for changing recent statements of the law (Second Territorial Senators Case (1977)). On one hand, the principle of stare decisis means that no Justice is entitled to ignore previous decisions of the Court. Questions of overruling precedents involves an ‘evaluation of factors’, informed by a ‘strongly conservative cautionary principle’ that such course should not be lightly taken (Wurridjal v Commonwealth (2009) at [70]). Therefore, in the Second Territorial Senators Case, Gibbs and Stephen JJ declined to depart from the holding of the First Territorial Senators Case (1975) even though they had dissented in that first case and continued to believe it was wrong. The significance of their Honours’ restraint was that the 1977 case had been decided after a change in the composition of the Court and there was now a new majority who believed the 1975 case was wrongly decided.
On another view, ‘constitutional stare decisis’ has been regarded as having less force than ‘statutory stare decisis’ because Parliament cannot alone rectify the consequences of an error in the High Court’s interpretation of the Constitution. Some judges have even gone so far as asserting that their duty as a judge means that stare decisis does not prevent them from expressing what they believe to be the right conclusion in the matter before the Court (see Coleman v Power (2004) at [289], [298] per Callinan J). In Re Patterson (2001), McHugh, Kirby and Callinan JJ joined Gaudron J in overruling Nolan (1988). Two years later, Gaudron J retired and Heydon J was appointed to the Court. That year, in Shaw (2003), Heydon J joined Gleeson CJ, Gummow and Hayne JJ in overruling Re Patterson, leaving McHugh, Kirby and Callinan JJ in dissent. Shaw demonstrates the potential impact of a change in composition of the Court.
Whilst the Court strives for a principled approach to reconsidering its previous decisions, adherence to stare decisis is ultimately a matter for each individual Justice. Unlike Nettle J who yielded to precedent and joined the current majority, Gageler and Gordon JJ have persistently dissented to the use of structured proportionality. Professor Andrew Lynch argues that ‘what drives the persistent dissenters…is the refusal to be swayed by any of the precedential criteria as a basis upholding that law’ (at 765). Therefore, there is a possibility that a new majority could overrule existing authorities on structured proportionality.
III The Future of Proportionality Testing: Other Constitutional Guarantees
Apart from the Court’s composition, two further considerations are relevant in asking whether structured proportionality analysis could be extended to other constitutional guarantees.
Firstly, one must examine why the Court recently adopted structured proportionality in place of the ‘reasonable necessity’ test for the s 92 freedom in Palmer (2021). A majority of the Court held that the ‘reasonable necessity’ test applied to limits on s 92 in Betfair (No 1) (2008) aligned with the second limb of structured proportionality—necessity (Palmer at [52])—and suitability was invariably addressed in past cases when construing the statute (at [58]). Their Honours noted that previous cases involved notions of balancing (at [57]–[58]) and held that the description of the s 92 freedom as ‘absolute’ supports the balancing limb (at [276]) by invalidating ‘out of proportion’ laws that put an extreme burden on s 92 for a trivial purpose (at [59]). Chordia had previously argued that the s 92 freedom could be distinguished from the implied freedom because a case-by-case analysis was required for the latter as the higher order principle – the system of representative and responsible government – is abstract. In contrast, Chordia argues that there is no need for a case-by-case balancing for s 92 as the approach is binary: either the law is protectionist or not. Although the Palmer Court did not address this specific argument, the majority found that there is no ‘relevant distinction’ between s 92 and the implied freedom and thus laws that burden s 92 should now be assessed using structured proportionality analysis (at [58]–[61]).
Secondly, one must also consider why the Court has not adopted structured proportionality in other constitutional cases. In Murphy v Electoral Commissioner (2016), the Court heard a challenge to a law that imposed a ‘suspension period’ for altering the Electoral Rolls from the day of closing of Electoral Rolls until close of polling for election on the basis that it violated the constitutional mandate of choice by the people (ss 7 and 24). In considering whether structured proportionality should be adopted in assessing burdens to the constitutional mandate, French CJ and Bell J highlighted the difficulty in applying the necessity limb – which involves consideration of any obvious and compelling legislative alternatives – for laws restricting voting rights because it would invite the Court to ‘undertake a hypothetical exercise of improved legislative design’ (at [39]). Nonetheless, their Honours left open that structured proportionality can be applied to ‘laws burdening or infringing a constitutional guarantee, immunity or freedom’ (at [38]). In JT International SA v Commonwealth (2012), Kiefel J held that proportionality is not applicable to s 51(xxxi) because, unlike s 92 and the implied freedom, the requirement of just terms is conditioned on there being a law which provides for the acquisition of property (at [340]). Therefore, it can be inferred, even from amongst proponents of structured proportionality, that the framework is not appropriate where it involves high policy choices, exceeding the judicial function or where limitations are expressed in the text.
1 Section 117
Section 117 provides that:
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
In Street v Queensland Bar Association (1989), the High Court held that s 117 provides an individual immunity for an out-of-state resident against impermissible disability and discrimination. However, the Court held that not every kind of differential treatment violates s 117 and there are exceptions of ‘necessity’ and ‘appropriate and adapted’ laws that are consistent with fostering Australian nationhood (at 491, 513–4, 541, 583, 552). This language bears a remarkable resemblance to the pre-McCloy implied freedom and pre-Palmer s 92 tests. The Court in Street noted that an exclusion of non-residents from voting in state elections is an example of discrimination that would fall outside s 117 (at 512, 528, 548), which demonstrates considerations of suitability and necessity to the purpose of preserving the representative nature of state legislatures. Indeed, Mason CJ’s statement that s 117 would be infringed unless the state can demonstrate that their interests in maintaining its autonomy are ‘over and above’ any interest in giving an advantage to its residents (at 493) has the hallmarks of the ‘adequacy in the balance’ limb of structured proportionality. As Street and subsequent s 117 cases were decided before McCloy, it could be argued that, like s 92 in Palmer, structured proportionality could now be extended to assessing s 117 as well.
It is noteworthy that, unlike the implied freedom and s 92 which are limitations on legislative power, s 117 is an individual right (Street at 486, 503, 566). However, this is unlikely to be fatal as French CJ and Bell J in Murphy expressly recognised that structured proportionality can be applied to a constitutional immunity (at [38]) and the Court can learn from other jurisdictions that apply structured proportionality to personal rights (see Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’).
2 Section 116
Section 116 provides that:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The Court has held that the protection afforded by s 116 is not absolute but rather ‘subject to powers and restrictions of government essential to the preservation of the community’ (Jehovah’s Witnesses Case (1943) at 149). The tests used to assess the validity of laws that infringe s 116 have two relevant similarities with structured proportionality. Firstly, in the ‘free exercise’ clause, the Court has balanced religious freedom with matters that have an ‘overriding public purpose’ or address a ‘pressing social need’ (Kruger v Commonwealth (1997) at 134). This is analogous to balancing the special importance of a public, protective purpose in the ‘adequacy in the balance’ limb of structured proportionality (see Palmer at [60]–[61]). Secondly, Gaudron J held that laws that burden s 116 can be assessed by considering whether they are ‘appropriate and adapted’ or ‘proportionate’ (Kruger at 134), which could be carried out by the structured proportionality framework.
However, two notable differences arguably provide a relevant distinction so that structured proportionality would not be extended. Firstly, the Court has held that whether a law infringes s 116 is determined only by considering its purpose (Kruger at 40, 86, 132, 161), which contrasts with the consideration of the law’s terms, operation or effect that is commonly analysed in structured proportionality in relation to the implied freedom and s 92. Secondly, s 116 is qualified in its application to only Commonwealth laws. The last guarantee expressed in s 116 is also limited to an ‘office or public trust under the Commonwealth’. Therefore, whilst there is some similarity of existing tests to the limbs of structured proportionality, a future Court could conclude that that analysis is inapposite for s 116 for the reasons of Kiefel J in JT International (at [340]), given that the express words impose qualifications themselves.
3 Nationhood Power
The High Court has held that the phrase ‘maintenance of this Constitution’ in s 61 gives rise to a power to protect the body politic or nation of Australia (commonly referred to as the ‘nationhood power’). This power supports laws that are peculiarly adapted to the government of a nation that cannot otherwise be carried on for the benefit of the nation (AAP Case (1975) at 397). Through s 51(xxxix), the Parliament can make laws incidental to the nationhood power. In Davis v Commonwealth (1988), the Court held that a law will not fall within the scope of what is incidental to the nationhood power unless it is ‘reasonably and appropriately adapted’ to pursuing an end within power (at 100, 113). The analysis undertaken by the Davis Court resembles the ‘suitability’ and ‘adequacy in the balance’ limbs of structured proportionality. In holding that the executive can incorporate a body to carry out the commemoration (at 94–5), it could be said that there is a rational connection to celebrating the Bicentenary. By invalidating the provisions on the basis that it caused adverse consequences unrelated to the commemoration and infringed on fundamental common law values (at 99), the Court undertook a value-oriented analysis analogous to considering the adequacy of the balance.
However, three significant factors would render structured proportionality inappropriate for assessing the validity of laws incidental to the nationhood power. Firstly, the necessity limb would empower the judiciary to intrude into political policy making, including responses to national emergencies (Pape v Commissioner of Taxation (2009)), which would be contrary to the judicial function discussed by French CJ and Bell J in Murphy. Secondly, the Court in Davis was considering burdens on common law, not constitutional, rights. Even if the law would be considered under the implied freedom today, that analysis would be separate from whether the law is supported by a head of power. Lastly, unlike the specific higher order values that are considered when balancing the implied freedom and s 92, the ‘adequacy in the balance’ limb is inapt for balancing a wide range of fundamental values and adverse consequences.
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Australian jurisprudence has adopted the march of structured proportionality to a considerable extent since McCloy. However, the High Court’s reliance on the suitability and necessity limbs demonstrates that it has adapted German cases to Australia’s constitutional context. Whilst structured proportionality analysis has been applied in all implied freedom cases since McCloy and recently extended to the s 92 freedom, the future of structured proportionality is not without doubt if new appointees join the minority’s opposition to the framework. Nonetheless, on current authorities, structured proportionality could be extended to considering challenges against s 117 but is unlikely to be adopted for s 116 and laws incidental to the nationhood power.
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Dane Luo is a Bachelor of Commerce (Honours) / Bachelor of Laws (Honours) student at the University of Sydney and a paralegal at the NSW Crown Solicitor’s Office. Later this month, he will begin as a Tipstaff at the Supreme Court of New South Wales. His submission to the NSW Law Society’s Sir Anthony Mason Constitutional Law Essay Competition and this piece were written in a personal capacity and neither necessarily reflects the views of the Crown Solicitor or the NSW Government.
Suggested citation: Dane Luo, ‘The “March of Structured Proportionality”: The Future of Rights and Freedoms in Australian Constitutional Law’ on AUSPUBLAW (08 April 2022) <https://www.auspublaw.org/blog/2022/04/the-march-of-structured-proportionality-the-future-of-rights-and-freedoms-in-australian-constitutional-law>.