Abstract
This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.
I Introduction
Despite its continental origins, a structured form of proportionality testing has now been adopted as a method of constitutional review in a number of common law jurisdictions. 1 In Australia, however, there continues to be uncertainty about the appropriateness of such a test when assessing constitutional limitations. While a majority of the Court has adopted a structured, three-part proportionality analysis, mirroring tests used elsewhere, the Australian test remains contested and controversial. This article focuses on one particular criticism—what I term the ‘common law objection’ to proportionality review—whereby it has been suggested that the style of reasoning and types of judgments that proportionality require sit uncomfortably within Australia’s common law tradition of legal reasoning. In particular, critics claim that a more ‘categorical’ approach, where there are different levels of constitutional scrutiny applied depending on the type or category of law in issue, would be more consistent with the common law tradition. Although the common law objection has been raised by various members of the High Court in a series of judgments since 2015, the precise nature of the objection remains unclear. The objection has not been closely scrutinised in the growing academic literature on proportionality, despite its potentially wideranging ramifications. 2
This article both clarifies and evaluates this objection—that proportionality testing is ill-suited to Australia’s common law tradition—and the extent to which it might raise legitimate concerns about the introduction of proportionality in Australia. The focus of the article is on the adoption of proportionality testing in the context of the implied freedom of political communication. 3 Part II of the article explains that the objection has emerged in response to a specific three-part form of proportionality testing, known as ‘structured proportionality’, rather than proportionality reasoning in a more general sense. Part III examines the nature of the common law objection, setting out how it has been developed by the minority justices of the High Court and delineating a number of discrete concerns which may be seen to be encapsulated under the umbrella of this objection. By disaggregating these concerns, this article helps to elucidate the real sources of the Australian resistance to structured proportionality. Part IV evaluates and analyses the merits of the common law objection. It argues that claims about the common law tend to have been too starkly cast and that Australia’s common law tradition does not provide a convincing basis for resisting the introduction of structured proportionality, at least in the context of the implied freedom. By clarifying—and ultimately rejecting—the common law objection, this analysis enables the debate over proportionality to shift away from the question of whether proportionality ought to be adopted and to focus instead on how proportionality can be further refined in the Australian context.
II Igniting the Debate: The Emergence of Structured Proportionality Testing
The common law objection has emerged in response to the introduction by a majority of the High Court, in McCloy v New South Wales (‘McCloy’) 4 in 2015, of a three-part test of proportionality in order to determine whether a law is compatible with the implied freedom of political communication. This test, which is often described as one of ‘structured proportionality’, requires the Court to assess whether the law is ‘suitable’, ‘necessary’ and ‘adequate in its balance’. 5 Under the first step of suitability, the Court is required to ask whether the law has a ‘rational connection’ to its purpose. 6 Secondly, at the necessity stage, the Court must ask whether there is any reasonably practicable ‘obvious and compelling alternative’ that has a less restrictive impact on the freedom. Finally, at the third stage, the Court must ultimately make a value judgment and assess the ‘balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom’. 7 Even though similar inquiries were undertaken under the previous ‘appropriate and adapted’ approach, 8 the new tripartite test requires each of the three sub-questions to be asked sequentially and in this way provides more structure for the Court’s decision-making. The new test, it is worth noting, was not intended to replace the traditional two-part Lange test but simply to refine it. 9 The three stages of proportionality testing mirror those found in German proportionality analysis, where the doctrine first emerged, although with some modifications to reflect the Australian setting. 10
Despite the widespread use of similar tests elsewhere, in Australia the adoption of this structured form of proportionality has been accompanied by vigorous debate and disagreement. 11 This includes contestation over the precise nature of the test, when and how it should be applied, and whether it is appropriate at all. 12 So far the new test has only been applied in the context of the implied freedom of political communication. In the 2016 case of Murphy v Electoral Commissioner, which concerned a challenge to federal electoral laws, a majority of the Court declined to apply the three-staged proportionality test. 13 There are also a number of aspects of the new test that remain unclear, such as whether the Court ought to adopt a variable standard of scrutiny and the appropriate role of judicial deference. 14 At a more fundamental level, the Court itself remains divided about whether proportionality is an appropriate standard to be applied in the Australian context at all. Existing scholarship, most notably from Adrienne Stone, has addressed the extent to which proportionality is consistent with Australia’s constitutional context. 15 This article builds upon this scholarship by tackling the more specific claim that proportionality is ill-suited to the common law tradition of legal reasoning, as that is applied in Australia. 16
Before proceeding to analyse this objection in more detail, it is important to note that this objection has emerged specifically in response to the adoption of a structured, three-part test of proportionality in the context of the implied freedom. This structured test needs to be distinguished from the more general notions of ‘proportionality’ as a way of describing the relationship between ends and means. Proportionality in this more general sense has long been employed in the Australian constitutional context, with many commentators tracing its emergence to Deane J’s judgment in the Tasmanian Dam case. 17 The language used by Deane J, however, did not mirror the European approach to proportionality and did not appear to import a structured test with discrete steps. 18 Instead, Deane J’s use of ‘proportionality’ appears to have been something of a shorthand for describing the appropriateness or ‘fit’ between legislative means and ends. Proportionality in this more general sense has been used by the High Court in a variety of different areas, such as in relation to the characterisation of certain heads of Commonwealth legislative power 19 and in assessing limitations on express and implied guarantees. 20 The Court has developed a number of differently worded tests, all of which have traditionally been framed by using the language of ‘appropriate and adapted’. 21 As I have explained elsewhere, it has long been accepted that this language incorporates some form of proportionality reasoning, and this is not particularly contested. 22 What is more controversial, especially since the decision of McCloy in 2015, is the extent to which these tests ought to incorporate a structured approach to proportionality.
III The Common Law Objection
The introduction of structured proportionality has generated considerable, and sustained, judicial criticism on the High Court. Justice Gageler and Justice Gordon, in particular, have developed detailed and nuanced critiques of proportionality over a series of recent judgments. 23 It is from these critiques that we see the emergence of what I have termed the ‘common law objection’ to proportionality review, which encapsulates the concern that proportionality is at odds with Australia’s common law tradition. Despite this objection being raised on a number of occasions, the precise nature of the concern remains unclear. In this part of the article, I seek to understand and articulate the basis of this objection more precisely. This is done, first, by charting how the objection has been developed by the minority justices as part of their criticisms of proportionality and, second, by identifying and disaggregating a number of different reasons for why it might be thought that structured proportionality fits poorly within the common law tradition. The following part, Part IV, then analyses whether each of these reasons offers a convincing argument against the adoption of proportionality testing. The analysis in this article focuses on the use of proportionality in relation to the implied freedom of political communication, as so far, a structured test of proportionality has not been extended to other areas. 24
A Rejecting Proportionality: The Unconvinced Minority
The common law objection has emerged as part of the minority justices’ broader critique of proportionality reasoning, and so in order to understand and evaluate the objection it is first necessary to consider the key aspects of the minority position. The starting point for this is Gageler J’s dissenting judgment in McCloy, where his Honour set out two principal reservations to the adoption of structured proportionality testing in Australia. The first of these relate to the imposition of a uniform analytical framework with three set questions to be applied by courts in every case concerning the implied freedom. 25 Justice Gageler criticised such ‘standardised’ criteria, arguing he was ‘not convinced’ that such a ‘generic’ approach was appropriate for every law that imposed a restriction on political communication. 26 Proportionality was, according to Gageler J, too rigid and did not reflect the ‘degrees of latitude’ that might be afforded to government action. 27 Secondly, Gageler J was critical of the third stage of proportionality, described by the McCloy majority in terms of ‘adequate in its balance’. This requirement was not, according to Gageler J, ‘sufficiently focused’ to reflect the reasons underpinning the constitutional implication, and it invited open-ended judicial balancing. 28 In McCloy, Gordon J also rejected the introduction of proportionality testing. She noted that the two Lange questions had been applied ‘without apparent difficulty’ since the decision in Lange 29 and took the view that the issues before the Court in McCloy could be answered ‘by reference to the known questions and tools’. 30
Underpinning these dissenting voices we see the emergence of a preference for a more defined approach to assessing constitutional limitations. Such an approach is often described as one more aligned to ‘categorisation’, as it involves applying different levels of constitutional scrutiny depending on the type or category of law in issue.
31
This type of approach, as I explain below, is often considered as one based on ‘rules’ rather than more open-ended standards.
32
The reasoning of both Gageler J and Gordon J appears to represent a shift towards a more defined approach, although not a full embrace of categorisation.
33
As Gageler J explained in the subsequent case of Brown v Tasmania, such an approach involves a process of calibration according to the nature of the law in issue: 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”.
34
This process of calibration involves different levels of justification or scrutiny, ranging from ‘close scrutiny’ or ‘compelling justification’ (which is the standard Gageler J applied in McCloy itself) 35 to a lower standard where it is only necessary to show that the means are ‘rationally related’ to the legitimate end. 36 According to Gageler J, such a calibrated approach is preferable to the majority’s test of structured proportionality. 37
Underpinning these criticisms of proportionality, it is possible to see an emerging objection based on the common law. Justice Gordon, for instance, suggested that the Lange analysis needed to be ‘case specific’ and that this common law approach had the advantage of permitting ‘the development of different criteria for different constitutional contexts’. 38 While Gageler J in McCloy did not explicitly discuss consistency with the common law, this theme was picked up by Sir Anthony Mason in his 2016 public lecture. 39 In the course of setting out Gageler J’s two key objections to proportionality, Mason noted that categorisation is the ‘only practical alternative’ to structured proportionality and that such an approach would ‘justify different criteria for the protection of different rights and freedoms, such as freedom of political communication, depending upon the nature and seriousness of the limitation.’ 40 This categorical approach, according to Mason, was a ‘traditional common law approach to the solution of legal problems’. 41 In addition, Mason suggested that when compared to proportionality, an approach of categorisation would ‘eliminate proportionality stricto sensu’, the most ‘problematic’ aspect of proportionality reasoning. 42
These supposed links between a ‘categorical’ approach and the common law have been further developed in subsequent cases. For instance, in Clubb v Edwards; Preston v Avery (‘Clubb’), Gageler J referred to his previous reservations about adopting a structured proportionality test, this time drawing explicitly on the common law tradition which underpins Australian constitutional law: Lawyers brought up in the tradition of the common law are comfortable with the application of precedent. Lawyers brought up in that tradition are less than comfortable with being constrained to adopt a standardised pattern of thought and expression in determining whether a given measure in a given context can be justified as reasonable or appropriate or adapted to an end. We value predictability of outcomes more than we value adherence to analytic forms. We have learned through long and sometimes bitter experience that “[l]inguistic refinement of concept” can “result in fineness of distinction which makes it ever more difficult to predict a course of judicial decision” whereas “an overtly imprecise concept can yield a degree of certainty in application, provided the reasons for choice are also made as overt as we can”.
43
This links back to one of Gageler J’s principal reservations set out in McCloy: that proportionality is too rigid. The standardised nature of the proportionality test, which requires the three questions to be answered sequentially, is—in Gageler J’s view—at odds with the flexible and case-specific nature of the common law method.
Justice Gordon has also appealed to the common law tradition and method of reasoning in her critique of proportionality reasoning. In Brown v Tasmania, she echoed Gageler J’s concerns in McCloy about the rigid structure of proportionality testing, observing that a ‘one size fits all’ approach does not reflect the common law method of legal reasoning.
44
Like Gageler J, she expressed a preference for a more defined approach, quoting Mason’s comment (from above) that categorisation is a ‘traditional common law approach’.
45
Proportionality, according to Gordon J, involved ‘abstracted top-down analysis’, which reflected its civil law origins.
46
This type of analysis was depicted as being at odds with the common law approach: The development of the common law occurs in a unique and restricted way. The common law can only be developed logically and analogically from existing legal principles. This analogical quality of common law reasoning differentiates it from other kinds of legal reasoning.
47
B Understanding the Objection: Disaggregating the Concerns
As Part III(A) above illustrates, both Gageler J and Gordon J have appealed to the common law tradition to bolster their case against the adoption of structured proportionality. The types of judgments and style of reasoning required by proportionality are claimed to be inconsistent with Australia’s common law tradition. In order to evaluate this objection, and to assess whether it raises legitimate concerns about the use of proportionality, it is necessary to consider carefully exactly what the common law objection is and what might be driving the judicial concern in this area. In this section, and drawing on the objections raised by both Gageler J and Gordon J, I attempt to identify and disaggregate a number of potential reasons for why it might be thought that structured proportionality fits poorly within the common law. This provides the foundation for the analysis in Part IV, where the merits of these reasons are assessed.
(i) The Origins of Structured Proportionality
One possible basis for the concern about the common law is the idea that simply because proportionality comes from the civil law tradition, it is ill-suited to the common law. It is well-known that the structured approach to proportionality, involving three distinct stages, has its origins in the civil law. The doctrine first emerged in Prussia in the 19th century in the context of administrative law, and in the 1950s it was picked up and refined by Germany’s newly minted Federal Constitutional Court. 49 From there we see the emergence of the three distinct questions of suitability, necessity and balance. These foreign origins of proportionality are not disputed by either the majority or the minority justices on the High Court. Such constitutional borrowing is not uncommon, and the ‘appropriate and adapted’ test itself was adopted from United States jurisprudence. 50
The real concern underpinning the minority justices’ critique, however, is not simply with the civil law origins of proportionality. As Gordon J makes clear in Clubb, the fact that the ‘origins of structured proportionality lie outside Australia is not the relevant question’. 51 Instead, it is whether these origins mean proportionality cannot be translated into the Australian context. Justice Gordon suggests, for example, that ‘the conceptual origins of structured proportionality find no readily identifiable equivalents in the Australian constitutional structure or jurisprudence.’ 52 This reflects the fact that proportionality was developed in a very different constitutional context and is often accompanied by the express protection of rights. In Australia, in contrast, the Constitution contains few express rights. It has been repeatedly emphasised, for instance, that the implied freedom is not an individual right and operates differently compared to similar guarantees in other jurisdictions. 53 The minority justices are particularly concerned that these differences—and the lack of an express rights regime in Australia—make proportionality unsuitable in Australia. The concern here, then, is not simply with the fact that proportionality has been borrowed but with the nature of this borrowing. Justice Gageler has emphasised the differences that exist between other jurisdictions and the Australian constitutional system and has warned of the ‘uncritical translation’ of foreign concepts. 54
(ii) The Methodology of the Common Law
Another aspect of the common law objection has to do with the methodology of the common law, and the supposed lack of fit between the way common law judges reason and the structures of proportionality testing. There are several features of the common law method which are relied on as part of this critique. First, there is the case-specific nature of the common law, which involves careful consideration of the individual facts of particular cases. Second, there is the process of reasoning from case to case, which is typically described as analogical reasoning. Finally, the common law is governed by a system of precedent which allows for the gradual development of legal principles over time, again tied to the specific facts of each case. 55
The concern is that proportionality, by imposing a uniform structure, sits uncomfortably with these particular features of the common law method. First, the structured nature of proportionality requires the same set of questions to be asked in every case. This approach does not, according to both Gageler J and Gordon J, adequately take account of relevant differences in terms of the nature and extent of the burden on the implied freedom. 56 By insisting on a uniform standard, it risks paying insufficient attention to contextual differences. Second, proportionality is said to require judges to engage in abstract or ‘top-down’ reasoning, which is thought to be inconsistent with the bottom-up or case-specific reasoning that is more familiar to those trained in the common law tradition. 57 Third, and relatedly, there is a concern that the application of a standardised test will hamper the incremental development of legal principles. For instance, Justice Gordon has commented that the application of standardised criteria risks ‘imped[ing] 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’. 58
(iii) Categories and Judicial ‘Balancing’
A third aspect of the common law objection is the concern that proportionality, and particularly the requirement to ‘balance’ competing interests, is not suited to the common law judicial role. As I have explained above, in the judgments of Gageler J and Gordon J we can see a preference emerging for a more defined approach to constitutional review whereby the level of scrutiny will be ‘calibrated’ to reflect the extent of the burden. 59 Justice Gordon notes there are elements of the United States approach to tiered scrutiny ‘latent’ in the Australian approach, and she quotes Sir Anthony Mason’s observation that ‘[c]ategorisation is a traditional common law approach to the solution of legal problems’. 60 Underpinning this preference for an approach based on categorisation is the familiar distinction between rules and standards; categorisation is commonly regarded as a rules-based approach, whereas proportionality is usually treated as a standard. 61 Rules, which are usually specific rather than general, are triggered by the existence of certain facts. 62 Rules, therefore, generally impose a greater degree of constraint on decision-makers and leave less discretion to individual judges. In contrast, standards tend to be expressed in more general language, and they are more flexible and open-ended. According to Schauer, standards leave ‘few of the decisions at the rule-making level’, and instead most decisions must be made ‘at the point and time of application’. 63 Thus, under a standards-based approach, there is generally a higher amount of discretion for individual judges.
This distinction between rules and standards helps to explain what is driving this preference for a more categorical approach to constitutional review. Underpinning it, it seems, is the idea that a more defined approach would avoid, or at least minimise, the need for judicial balancing. This reflects a deeper concern about the evaluative nature of the judgments that proportionality requires courts to make. 64 As Gageler J explained in McCloy, the open-ended and indeterminate nature of the balancing inquiry does not properly reflect the reasons underpinning the implied freedom or the factors that need to be considered to determine whether the freedom has been infringed. 65 According to Gageler J, a series of ‘principled’ rules or formulas would go some way to mitigating his concerns. 66 Sir Anthony Mason in his commentary has been more explicit, suggesting that when compared to structured proportionality, categorisation would ‘eliminate’ the third stage of proportionality stricto sensu. 67
IV Evaluating the Common Law Objection
As the preceding section illustrates, it is possible to discern three distinct concerns which underpin the common law objection. These are the civil law origins of structured proportionality, its consistency with the methodology of the common law, and the problem of judicial ‘balancing’. In this section, I analyse the merits of each of these concerns, suggesting that they do not present convincing reasons to reject the use of structured proportionality in Australia.
A The Origins of Structured Proportionality
The concern about the civil law origins of proportionality is not about the mere fact that proportionality has been ‘borrowed’ from elsewhere. As I have explained above, the critique is more nuanced and concerns the nature of the borrowing. There are two aspects to this concern. The first arises from the different constitutional context in which proportionality first developed, and the lack of a similar context in Australia. A key difference, of course, is the express protection of rights which often accompanies the use of proportionality tests. In many of the jurisdictions where proportionality is applied, its adoption has been precipitated by the introduction of express catalogues of rights. 68 Moreover, in some jurisdictions, such as Germany, where the doctrine was first developed, proportionality is understood as a substantive and rights-optimising doctrine. 69 In contrast, in Australia the Constitution was chiefly designed to allocate powers and functions between different branches of government, and there are few explicit individual rights protections. 70 These differences mean that in Australia any substantive conception of rights—akin to the ‘objective order of values’ in the German Basic Law—is quite unrecognisable. 71
While the absence of an express bill of rights at the federal level means there is no textual hook to support the introduction of proportionality reasoning (as there is in many other jurisdictions), the lack of an express charter of rights in Australia is not necessarily a barrier to the adoption of proportionality reasoning. Bearing in mind that the implied freedom is itself an implication derived from the Constitution, it seems to make little sense to insist that the test to assess limitations needs to have an explicit textual basis. Given that the implied freedom has been recognised (and is, now, one of the most important sources of rights protection in the Australian Constitution), 72 courts must come up with some way of assessing appropriate limitations. Where rights are expressly recognised, proportionality is not the only method that can be adopted to determine limitations, and the main alternative is an approach of categorisation, such as that used in the United States. 73 So, the point is simply to observe that more explicit textual rights protection might not, automatically, lead to the adoption of proportionality.
In addition, the concern about the origins of proportionality—and its close connection to the protection of rights—depends on a particular conception of proportionality. As explained above, this rights-based conception is linked to the doctrine’s German origins and the particular role proportionality plays in Germany’s constitutional order. 74 As Adrienne Stone has argued, however, this rights-based conception is not the only way in which proportionality can be understood. 75 As the comparative literature shows, variants of proportionality are now used across many jurisdictions and the doctrine has been adapted to different constitutional settings. 76 This has been done, as Stone suggests, without importing the German optimising conception of rights. 77 Rather than being seen as a substantive rights-protecting doctrine, proportionality can be understood as simply a methodological device. 78 That is, it can be understood as a procedural ‘elaboration’ which provides a structured and transparent process by which courts analyse competing interests. 79 This ‘severing [of] the link between proportionality and rights’ means, as Stone has argued, that many of the rights-related concerns about proportionality fall away. 80 Correspondingly, therefore, concerns about the foreign origins of proportionality also assume less relevance.
Linked to this concern about the foreign origins of proportionality, there is also a concern about the ‘uncritical translation’ of proportionality, without sufficient regard for Australia’s unique constitutional context. 81 Like all legal ‘transplants’, however, proportionality is not applied in a uniform fashion but is adapted to meet the local culture and traditions. 82 There is no suggestion by the majority justices that the introduction of proportionality will import all of the considerations that accompany its use elsewhere. 83 The absence of an entrenched bill of rights at the federal level, combined with the High Court’s strict approach to the separation of powers, means that proportionality has already, even though only in its infancy, taken on some distinctive and peculiarly ‘Australian’ features. 84 For instance, the Court has been careful to describe the final stage in terms of ‘adequate…balance’, indicating that the Court’s role may be more limited than it is in other jurisdictions. 85 In addition, at the necessity stage, the consideration of alternatives is confined to those that are ‘obvious and compelling’, again reflecting the Court’s concerns with the limits of the judicial role. 86 These refinements indicate that proportionality has not been imported in a wholesale fashion, but there have been some attempts to modify it to suit the constraints of the Australian constitutional setting. As the jurisprudence in this area develops, and proportionality is applied in a wider variety of cases, it is likely that these local adaptations will be further developed.
B The Methodology of the Common Law
The second aspect of the common law objection relates to the perceived lack of fit between proportionality and the process of reasoning employed as part of the common law tradition. As indicated above, there are a number of aspects to this concern. The first is that proportionality, in imposing a uniform structure, fails to take account of relevant differences in context between individual cases. The second is that proportionality requires judges to engage in abstract or ‘top-down’ reasoning, which is contrary to the common law’s traditional approach to legal reasoning. Third, and relatedly, there is a concern that the application of a standardised test is inconsistent with the precedential nature of the common law. Each of these three aspects is addressed in turn.
(i) The Uniform Nature of Proportionality
The first concern about proportionality’s poor fit with the methodology of the common law relates to the standardised nature of proportionality testing. Justices Gageler and Gordon, for instance, have both expressed concern about the ‘one size fits all’ nature of proportionality testing which, in their view, fails to take account of relevant differences in context between individual cases. 87 Proportionality is seen to be too ‘rigid’ in that it requires the application of a fixed set of questions which will not always be appropriate for every law limiting the implied freedom. 88 It is this uniform nature of proportionality testing which is thought to be at odds with the flexible and case-specific nature of the common law method.
However, this criticism relies on a particular, and not universally accepted, understanding of proportionality. As the comparative literature on proportionality makes clear, proportionality is in fact an inherently flexible concept. 89 It has been described as ‘plastic’, in reference to its capacity to be applied with almost infinite levels of scrutiny. 90 The very nature of proportionality review means it is tied to the particular facts of the case. While structured proportionality does require particular questions to be considered in a sequential fashion, 91 these questions are applied in accordance with the common law’s usual method and within the context of a specific dispute initiated by the parties. 92 The three stages of proportionality must be applied by reference to the specific facts and circumstances of an individual dispute. As Bernhard Schlink has observed, ‘from case to case, facts may be assessed differently and rights and interests weighed and balanced differently.’ 93 Proportionality simply provides a structured method of analysis; on its own it tells us nothing about whether a particular result is correct. 94 The Court must, therefore, evaluate the particular law, its context, purpose and the circumstances in which it operates. Like all legal tests, much will depend on how a court reasons and the extent to which the different steps in its analysis are made explicit. It is here that there are likely to be differences between jurisdictions, reflecting not only different legal traditions but also different constitutional contexts.
(ii) Proportionality and Top-Down Reasoning
The second potential aspect of the concern about the consistency between proportionality and the methodology of the common law relates to the mode of reasoning employed in each system. As will be recalled, this argument proceeds on the idea that proportionality represents a traditional civil law approach to legal reasoning, whereas categorisation is more consistent with the common law.
It is necessary at this stage to say something more about the distinction between civil law and common law systems. There are, of course, some important differences between the two systems, in terms of their histories, sources of law and processes of reasoning. As Zweigert and Kötz point out in their seminal text on comparative law, [T]he Germanic and Romanistic families are marked by a tendency to use abstract legal norms…The tradition of the English Common Law has been one of gradual development from decision to decision; historically speaking, it is case-law, not enacted law…On the Continent lawyers, faced with a problem, even a new and unforeseen one, ask what solution the rule provides; in England and the United States they predict how the judge would deal with the problem, given existing decisions.
95
Under this traditional dichotomy, the two systems are marked by different styles of legal reasoning. Civil law judges are said to employ ‘top-down’ legal reasoning. Such reasoning is deductive, as it involves reasoning from broadly expressed abstract principles to the particular circumstances of a case. In contrast, common law judges are said to work from the ‘bottom up’, reasoning from the particular facts of the case.
96
Common law reasoning is thus considered to be inductive, as it involves reasoning from the particular to the general. It requires careful judicial consideration of the facts of each individual case,
97
and the law develops incrementally through the gradual development of judge-made rules. Judge Posner, in a widely cited article, has explained the distinction as follows: In top-down reasoning, the judge or other legal analyst invents or adopts a theory about an area of law—perhaps about all law—and uses it to organise, criticise, accept or reject, explain or explain away, distinguish or amplify the existing decisions to make them conform to the theory and generate an outcome in each new case as it arises that will be consistent with the theory and with the canonical cases, that is, the cases accepted as authoritative within the theory. The theory need not be, perhaps never can be, drawn “from” law; it surely need not be articulated in lawyers’ jargon. In bottom-up reasoning, which encompasses such familiar lawyers’ techniques as “plain meaning” and “reasoning by analogy”, one starts with the words of a statute or other enactment, or with a case or a mass of cases, and moves from there—but doesn’t move far, as we shall see. The top-downer and the bottom-upper do not meet.
98
In Australia, at least, the concept of ‘top-down’ reasoning has come to be used in a largely pejorative sense. 99 The terminology appears to have first been used in the constitutional context in McGinty v Western Australia where McHugh J, citing Judge Posner, noted that top-down reasoning ‘is not a legitimate method of interpreting the Constitution’. 100 Since then, as Mason has observed, the charge of ‘top-down’ reasoning has become a ‘term of abuse’. 101 As Taggart has observed, ‘many in Australia seem fearful of it and think it foreign to the common law tradition’. 102 This can be seen in the constitutional context where McHugh J suggested that Deane and Toohey JJ’s reference to the freedom of political communication as a doctrine underlying the Constitution was an illegitimate form of top-down reasoning. 103 According to McHugh J, in an approach that was later endorsed by a unanimous Court in Lange, any implications must be firmly grounded in the text and structure of the Constitution. 104 In other contexts, too, this criticism of top-down reasoning has been picked up and the Court has urged caution in relation to ‘all-embracing’ theories. 105 Such theories are, as Gummow J has suggested, more appropriate in the civilian tradition, whereas in the common law ‘general principle is derived from judicial decisions upon particular instances, not the other way around.’ 106
However, this simple dichotomy between common law and civil law systems oversimplifies a more complex reality. While the common law does, traditionally, depend on a gradual evolution of case law, there has been an increasing prevalence of statute law to systematise and organise bodies of rules. A large part of what Australian courts now do is, it is widely acknowledged, the interpretation of statutes. 107 In addition, of course, judges in the civilian tradition do not simply mechanistically apply general legal rules; they also have a role of interpreting and developing the law, particularly as the historic Codes must be applied to ever-changing societies. 108 In these ways, therefore, it is possible to see some convergence between the continental and common law systems; 109 neither systems are static and both continue to evolve and adapt.
In the context of legal reasoning, too, the distinction between top-down reasoning and bottom-up reasoning seems to be too starkly stated. A strict dichotomy between the two styles of reasoning fails to capture the reality of how judges actually reason in each tradition. As others have suggested, the notion of ‘pure’ top-down or bottom-up reasoning does not correspond with the multifaceted ways judges reason in practice.
110
As Zoë Sinel points out in a different context, it is unclear that judges ever in either legal system (common or civil) do just one or the other. Rather, judges reason simultaneously in both directions, applying general abstract principles to discrete facts and reasoning by analogy…to fit new cases within established precent and under the umbrella of a more general principle.
111
In the Australian context, as Mason has explained, judges rarely use only bottom-up reasoning, and some engagement with broader principles (ie top-down reasoning) is also at work. 112 This was recognised by Posner himself, even though his article is now often utilised to critique top-down reasoning. 113 As Mason suggests, common law judges can and do reason by reference to ‘broad principles, rules, concepts and categories’, as these are vital to the task of perceiving relevant similarities or dissimilarities. 114 Indeed, drawing upon such broader principles is essential to the development of the common law. 115
As this discussion indicates, the distinction between the modes of reasoning employed in common law and civil law systems is not clear-cut. Despite the common law’s traditional preference for case-specific reasoning, in reality judges employ a combination of both top-down and bottom-up reasoning. This suggests, then, that the concern that structured proportionality testing requires judges to engage in a foreign mode of reasoning tends to be overstated. Judges already use a range of different types of reasoning and in a variety of other contexts have to make difficult evaluative judgments. Such judgments are not unique to proportionality testing and, as I suggest in Part IV(C) below, judicial experience in other areas may in fact assist judges in applying aspects of the proportionality test.
(iii) Precedent and the Development of the Common Law
The third aspect of the concern based on the common law methodology relates to the incremental nature of the common law. The imposition of a uniform test of proportionality is thought to be contrary to the case-by-case manner in which the common law traditionally develops. According to the conventional dichotomy, civil law jurisdictions are governed by comprehensive codes and there is no formal doctrine of precedent. 116 Conversely, common law systems are traditionally characterised by judge-made law, and judges are obliged to follow previous decisions from within the same court hierarchy if the facts of the two cases are sufficiently similar. However, as I have explained above, the divide between civil law and common law systems is often overstated. 117 In terms of the doctrine of precedent, although there is no formal doctrine of precedent in civil law jurisdictions, in practice weight is often attached to previous court decisions. 118 In addition, in some jurisdictions, such as Germany, certain decisions—such as those of the Federal Constitutional Court—are considered binding in practice. 119
In addition, this precedent-based concern tends to overlook the fact that the common law itself is not a static tradition; it continues to evolve and can accommodate the incorporation of new rules or methods. It is not fixed at a particular point in time but, by its very nature, is subject to a continual process of evolution. As Kirby J explained in a different context, the rules of the common law ‘are in a constant process of alteration and re-expression’. 120 As I have already noted, for instance, it is widely acknowledged that Australian judges now operate in an ‘Age of Statutes’. 121 While the judicial function now frequently, and perhaps overwhelmingly, involves the interpretation of statutes, this does not take place divorced from the common law tradition. Rather, the common law method—complete with precedent and analogical reasoning—continues to apply, albeit to a differently focused judicial task.
This adaptation can be seen in other jurisdictions where proportionality has been adopted. For instance, in McCloy itself, the joint judgment endorsed comments from Lord Reed JSC of the United Kingdom Supreme Court about structured proportionality testing in UK domestic law. 122 In contrast to the ‘broad brush’ approach to proportionality applied by the European Court of Human Rights, 123 the ‘more clearly structured approach’ developed in the UK context reflected the ‘analytical approach to legal reasoning which is characteristic of the common law’. 124 This suggests, at least implicitly, that proportionality can be applied consistently with Australia’s common law tradition.
Far from being a barrier to the adoption of structured proportionality, some have suggested that Australia’s common law tradition may in fact assist the Court in applying tests of proportionality. Justice Edelman, the latest member of the High Court to endorse structured proportionality testing, 125 has recognised that in providing a ‘structure for decision making’, proportionality is not ‘antithetical to the common law process’. 126 On the contrary, proportionality can be applied consistently with the common law method. This involves applying proportionality in a way that is sensitive to differences in facts and context and drawing on the Court’s existing precedents. 127 Just as categories of tort or contract have been developed and refined by the common law process, Edelman J recognises that ‘[i]ncremental development within each stage of proportionality testing has occurred and will continue to occur.’ 128 This idea of incremental development is relied upon by Rosalind Dixon in proposing an approach of ‘calibrated proportionality’. 129 Drawing upon Edelman J’s reasoning, Dixon suggests that proportionality can be ‘glossed’ or developed ‘according to ordinary common law methods’. 130 By highlighting the link between ‘calibration’ and ‘prior judicial precedent’, Dixon seeks to develop context-specific factors that inform the second stage of the Lange test. 131
As the above discussion indicates, the methodology of the common law does not provide an insurmountable barrier to the introduction of a more structured approach to proportionality. Proportionality itself is a flexible principle and one that can be applied consistently with the common law’s case-specific approach. Further, as will be elaborated below, the application of precedent-based reasoning may, over time, lead to a more rule-like approach to proportionality. 132
C Categories and Judicial Balancing
The final aspect of the common law objection that I have identified relates to the nature of the judicial task required by structured proportionality testing. In particular, in both Gageler J and Gordon J’s critiques of proportionality there is a concern that proportionality is too flexible and indeterminate. As indicated above, in the reasoning of both justices there appears to be a preference for a more defined or calibrated approach to assessing constitutional limitations. Such an approach, they suggest, would be more consistent with the common law. 133
This preference for a more defined or ‘categorical’ approach draws on the well-known distinction between rules and standards. As I have explained above, proportionality is often considered a ‘standard’ as it is flexible and leaves more discretion to the individual judge at the point of decision-making. 134 A rule-based approach, in contrast, is thought to impose a greater degree of constraint and allow less room for individual judicial discretion. In practice, the distinction between rules and standards is often illustrated by reference to the distinction between constitutional review in the United States versus the Canadian approach to s 1 of the Charter. In the US, the Supreme Court has developed what is often described as an approach of ‘categorisation’, where there are distinct levels of constitutional scrutiny ranging from ‘rational basis’ to ‘strict scrutiny’. 135 Conversely, in Canada the Supreme Court has resisted a rule-like approach to the limitations clause in s 1 of the Charter. Instead, the Supreme Court has insisted that s 1 of the Charter provides a single standard of review. 136 Section 1 is to be applied flexibly in a case-by-case manner, although in practice there is considerable variation in the application of this standard. 137 The distinction between rules and standards is not, however, a clear-cut one. As others have pointed out, rather than representing distinct ‘either/or’ alternatives, 138 there is often some convergence between rules and standards. Over time, for instance, the application by courts of standards may crystallise into patterns that more closely resemble a rule-based approach. 139 Rather than a strict dichotomy, therefore, it is better to acknowledge, as Stone has suggested, that there are ‘many points along the spectrum’ between rules and standards.
In Australia, the High Court has been sitting on the edge of this debate for some time, not explicitly committing to a point on this spectrum. Under the previous ‘appropriate and adapted’ test, for example, there was some uncertainty about whether this incorporated different ‘rules’ or levels of scrutiny, or whether it was a flexible standard. In Tajjour, where the structured approach to proportionality was beginning to take shape, French CJ was clear that the Lange test ‘does not import the range of different kinds of scrutiny, from minimal to strict, adopted in the Supreme Court of the United States’. 140 The emergence of structured proportionality testing in McCloy v New South Wales, as explained in Part II above, seems to indicate that there is now majority support amongst the Court for a standards-based approach. In McCloy itself, the joint judgement did not resolve the question of whether proportionality testing might involve differing levels of scrutiny. 141 In the subsequent case of Brown, while the plurality justices rejected the formulation of any general rule regarding different standards of scrutiny, they suggested that ‘[i]t is possible that a slight burden on the freedom might require a commensurate justification’ and that ‘a heavy burden would ordinarily require a significant justification’. 142 In contrast, the dissenting judges have expressed a preference for more defined approach, where the level of scrutiny will be ‘calibrated’ to reflect the extent of the burden. 143 As I have explained above, the approach endorsed by both Gageler J and Gordon J seems to be a step towards a more rule-based approach.
Underpinning the reasoning of the minority justices there is the suggestion that a more defined or rule-based approach is more consistent with the common law. First, it is suggested that categorisation is a traditional common law approach to determining legal disputes. 144 It is clear that the common law does, in many areas, involve the application of defined rules or categories, and this is particularly evident in private law fields such as tort or contract. However, even in these areas, the very nature of the common law means any rules or categories are applied by reference to the individual facts and circumstances. 145 The application of this common law method may, as more cases are determined, gradually lead to the development of patterns and a more rule-like approach to proportionality. 146 In addition, the existence of categories in these areas is not fixed and it is open to judges to develop new categories, such as recognising new circumstances that give rise to a duty of care in tort law. As Edelman J recognised in Clubb, as more judges apply structured proportionality testing there is likely to be a similar process of incremental development at the various stages of the test. 147 As I have explained above, the distinction between rules and standards is not clear-cut, and it does not track neatly onto a distinction between civil law and common law approaches.
Secondly, and relatedly, there is the suggestion that categories might eliminate, or at least reduce, the need for judicial balancing. 148 This reflects a concern with the types of judgments proportionality requires judges to make. It is not disputed, amongst proponents or critics of proportionality, that a structured proportionality test does involve difficult evaluative judgments. The joint judgment in McCloy, for instance, observed that under the new three-part test of structured proportionality such judgments would be more explicit. 149 This, in turn, was said to promote transparency in judicial decision-making, which is often held up as one of the virtues of proportionality testing. Such an explicit resort to value judgments, however, sits somewhat uncomfortably with the Australian conception of the judicial role. In particular, the High Court’s strict interpretation of the separation of powers and the dominant Dixonian legacy of ‘legalism’ means that such an overt reference to values have in the past often been avoided. 150
While proportionality seems to require a more explicit discussion of values, it is not clear that an approach based on categories of scrutiny would eliminate the need for such evaluative judgments. Even though categorisation is sometimes claimed to avoid or reduce the need for such value judgments, as Douek notes, this ‘promise of objectivity is illusory’. 151 For instance, under the previous ‘appropriate and adapted’ approach applied by the High Court, such value judgments were implicit. 152 As Adrienne Stone has convincingly argued, the application of the implied freedom must depend on more than just the text and structure of the Constitution. 153 In assessing limitations on the implied freedom and whether they are justified, in other words, the courts must necessarily draw upon sources and considerations beyond the Constitution itself. 154 Therefore, the value judgments inherent in proportionality analysis cannot be avoided by an approach of categorisation. It may be that some of the value judgments are made at a different stage of the analysis, leaving less discretion for lower courts, but there is still the need for difficult questions of judgment. 155 If the courts must adjudicate on the limits of constitutional guarantees—as they must in the Australian system—these questions cannot be entirely avoided.
Further, the types of evaluative judgments presented by proportionality analysis are not completely foreign to the common law. Other areas of law, such as the ‘reasonableness’ standard in administrative law, or the ‘reasonable person’ in tort law, invite similar evaluative judgments. 156 Paul Craig has observed that long before the advent of the modern proportionality test (stemming from European law), the English common law courts routinely applied a similar concept, often expressed in terms of ‘proportionability’. 157 Through applying this concept the courts were, as Craig explains, concerned that regulatory burdens on individuals were not excessive. 158 Similarly, as Nettle J suggested in Clubb, the task required of judges at the ‘balancing’ stage of structured proportionality testing is not dissimilar from that that arises in other areas of law. 159 While this stage is often criticised for requiring the weighing of ‘incommensurables’, Nettle J observed that in areas such as identifying a duty of care or sentencing a criminal offender, ‘courts are not infrequently called upon to weigh competing values that could never plausibly be reduced to any single metric of evaluation’. 160 In this way, Nettle J recognised, correctly in my view, that familiar principles of the common law may actually assist courts in assessing the ‘adequacy in balance’ criterion. 161 In this way, therefore, we can see that the consideration of competing values is not something that is unique to proportionality reasoning, 162 and common law principles may in fact assist courts in undertaking such evaluative exercises.
V Conclusion
In this article, I have addressed one particular aspect of the debate over structured proportionality in Australian constitutional law: its compatibility with Australia’s common law tradition. I have sought, first, to analyse the nature of this objection in more detail and have suggested that under the umbrella of the common law objection it is possible to discern three distinct concerns. These relate to the civil law origins of structured proportionality, the distinctive methodology of the common law and the need for judicial balancing. I have then assessed the merits of each of these concerns, ultimately suggesting that arguments about the differences between common law and civil law systems tend to have been overstated. While there are some important differences between the two systems, Australia’s common law tradition does not provide a convincing objection to the adoption of proportionality reasoning. Instead, as I have suggested, the flexibility of both proportionality and the common law system mean that structured proportionality can be modified to apply in the Australian context in a way that is consistent with the common law tradition.
This prompts the question, then, of whether the common law objection is in fact something of a chimera. If the common law does not, as I have suggested, provide a barrier to the adoption of a more structured form of proportionality reasoning, why do the minority justices continue to appeal to the common law? To understand what is driving the judicial concern in this area, I have sought to articulate the various concerns that are bundled up as part of the common law objection. This analysis suggests that the minority justices’ concerns raise fundamental questions about the nature of the judicial task required by proportionality reasoning. These include concerns about Australia’s constitutional context and its lack of express rights protections, our traditional processes of legal reasoning and the need for evaluative judgments to be made. It is these aspects of proportionality reasoning that remain deeply troubling for the minority justices, and which suggest that the ‘common law objection’, encapsulating as it does these broader concerns, deserves close attention.
Clarifying the nature of the common law objection paves the way for the debate to shift away from the question of whether proportionality ought to be adopted in Australia and to focus instead on how it might be adapted and applied. As I have indicated in Part IV(A) above, there have already been a number of modifications to the European version of proportionality to accommodate Australia’s unique constitutional tradition. Proportionality is, as I have explained, a flexible instrument, and one which can be adapted to meet local conditions. For the minority, though, the proposed adaptations do not allay their concerns, and they have suggested the development of a more ‘calibrated’ or defined approach with distinct levels of scrutiny. 163
Understanding the common law objection is also important as it provides insights into the Court’s comparative orientation. After analysing the various aspects of the objection, one is left with a lingering sense that proportionality is disliked because it is foreign. The High Court has long engaged with law from other jurisdictions and reference to foreign precedents is common. 164 While this practice is well-established, and not especially contested, 165 questions remain about the nature of such comparative engagement. In the debate over structured proportionality, and appeals to Australia’s common law tradition, we see some differences emerging between the majority and minority justices. The majority justices tend to point to the similarities between the established Australian position and the tests of proportionality used elsewhere, noting that ‘[a]nalagous criteria have been developed in other jurisdictions, particularly in Europe’ that might inform the Australian approach. 166 At the same time, however, the majority justices have cautioned against the blanket adoption of a European approach 167 and have, for example, continued to reject the applicability of a ‘margin of appreciation’ in the Australian context. 168 The minority justices, in contrast, do not reject comparative law per se but take a different approach to the relevance of such comparison in this context. Unlike the majority, the minority justices emphasise difference. As my analysis of the common law objection above has shown, this can be seen in the minority’s emphasis on the foreign, and particularly continental origins of the doctrine, as well the different contextual factors that underpin the Australian constitutional system.
These divergences between the majority and minority justices in terms of the use of comparative law await fuller attention. Future scholarly work might usefully consider the Court’s methodology, including the purposes for which it draws upon comparative law and the sources on which it draws. The majority justices, for instance, have tended to reference cases from Canada and the UK, 169 suggesting perhaps a greater level of familiarity and comfort with common law applications of proportionality. 170 Further attention to the ways in which comparative material is utilised by both the majority and minority justices would be instructive. As this article has suggested, appeals to the common law can be used by both supporters and critics of proportionality reasoning, relying on claims of similarity or difference. Closer attention to the nature of these similarities and differences—in terms of history, structure and context—might assist in working out how structured proportionality can be best adapted to suit the Australian system.