Proportionality and Its Alternatives

This article examines the claim that the adoption of structured proportionality analysis is not well suited to the Australian constitutional context and argues that this claim is mistaken. Structured proportionality analysis is sometimes associated with a strong commitment to fundamental constitutional rights which is, it is conceded, foreign to Australia. However, structured proportionality can also be understood merely as a method of analysis which changes the High Court’s previous approach only slightly. This argument clears the way for the adoption of proportionality in Australia. However, it is also argued that the positive case for its adoption is inconclusive. Proportionality promises an increase in transparency by isolating the balancing element of the analysis. However, it is unclear how much difference this somewhat minor adjustment will make in practice and those advantages must, in any event, be measured against the cost of distraction and confusion created by doctrinal innovation. Finally, the article addresses ‘calibrated scrutiny’, Gageler J’s preferred form of analysis. It is argued that this approach offers some advantages. However, it need not be seen as an alternative to the proportionality method. On the contrary, the two approaches could be reconciled and a form of proportionality used as a manner for better development of the law.