The Supreme Court, 1991 Term

Proportionality in Australian Constitutional Law

“…60 It has been speculated that the reason for this was the prevailing German legal scientific tradition, which at this time was emphasising an approach to law epitomised by 'an autonomous, complete, and logical system of concepts and rules that contained within it solutions for all the cases that came before it'. 61 Under this 54 Currie, above n 47, 308. 55 Cohen-Eliya and Porat, above n 40, 271.…”

“…See, Sweet and Mathews, above n 42, 101-2 fn 74; Cohen-Eliya and Porat, above n 40, 274 fn 44. 61 above n 40,274. tradition, the kind of qualitative cost-benefit analysis that would have been required in the balancing form of proportionality would have been beyond what could legitimately have been undertaken by the judiciary and justified as strictly 'rational'. 62 This was particularly so given that there was no textual basis for conducting such an assessment; there was simply a generalised notion of 'individual freedoms'.…”

“…For example, in 2008, Leslie Zines reflected that 'proportionality has been used in a number of areas of law in addition to the external affairs power, including s 92 and other cases where it is necessary to balance a freedom or restriction on power with other pressing social interests'. 61 Similarly, in McCloy v New South Wales, 62 French CJ, Kiefel, Bell and Keane JJ observed that '[proportionality] criteria have been applied to purposive powers;…to incidental powers…; and to powers exercised for a purpose authorised by the Constitution or a statute, which may limit or restrict the enjoyment of a constitutional guarantee, immunity or freedom'. 63 On the other hand, the precise role of proportionality across these diverse contexts has never been explained with any theoretical depth.…”

“…Thus, for example, in the context of characterisation, McHugh J opined in Leask v Commonwealth 65 that if proportionality became a 'general touchstone' of constitutional power, then the High Court 'would be drawn inexorably into areas of policy and of value judgments'. 66 Similarly, Dawson J warned in Cunliffe v Commonwealth 67 of the 'danger in the inappropriate use of the concept of 61 Zines, above n 22, 60. 62 (2015) 257 CLR 178.…”

“…(Wecshelwirkung), 59 the Constitutional Court reached the view that 'general laws' and freedom of expression were 'mutually limiting and constitutive of each other's meaning'. 60 The centrality of Lüth in marking the beginning of a trajectory in the Constitutional Court's jurisprudence and its conception of its own legitimacy becomes apparent in the Pharmacy case, 61 decided later in the same year. In the Pharmacy case, the Constitutional Court was faced with a complaint concerning regulations that prescribed certain requirements for the grant of licences to pharmacies in Bavaria.…”