Proportionality Analysis by the Israeli Supreme Court

Steiner, Talya

doi:10.1017/9781108596268.007

Cited by 1 publication

(2 citation statements)

References 13 publications

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“…Instead, necessity requires that there should be no 'obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom'. 185 Despite some dicta to the contrary, 186 [194] (Edelman J). A minor qualification is that Edelman J refers to alternative measures that achieve Parliament's purpose to 'the same or a similar extent'.…”

Section: Necessitymentioning

confidence: 99%

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The Reception of Structured Proportionality in Australian Constitutional Law

Wesson

2021

Federal Law Review

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A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

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Section: Necessitymentioning

confidence: 99%

“…193 In some cases, the Court applies a strict interpretation of necessity. 194 However, in other cases, the Court emphasises 'adequate' rather than 'equal' effectiveness of the less restricting alternative. 195 A third formulation of the necessity test requires only that the least restricting alternative be within the 'proportionality range'.…”

Section: Balancingmentioning

confidence: 99%

The Reception of Structured Proportionality in Australian Constitutional Law

Wesson

2021

Federal Law Review

View full text Add to dashboard Cite

show abstract

Proportionality Analysis by the Israeli Supreme Court

Cited by 1 publication

References 13 publications

The Reception of Structured Proportionality in Australian Constitutional Law

The Reception of Structured Proportionality in Australian Constitutional Law

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