Abstract
For reasons which will become apparent I am not inclined to think that, in the context of the implied freedom of political communication, the High Court is confronted with a choice between proportionality and calibrated scrutiny. The two can coexist peacefully. If there is a choice to be made, it is a choice between calibrated scrutiny and tiered scrutiny.
For reasons given by Adrienne Stone, structured proportionality is an appropriate analytical tool for resolving the issues which arise, even if there is a need for a degree of ‘tweaking’. Firstly, structured proportionality gives teeth to the conclusory formula ‘appropriate and adapted’, which has a long history in Australian constitutional law. Secondly, even if, as is the case, structured proportionality had its origins in, and is generally confined to, the protection of constitutional individual rights and freedoms, there is no fundamental reason why it cannot be applied to protect a freedom of political communication which is not a free-standing right or freedom but is an implied restraint on legislative power. As such, the implied freedom may not have the same force as a free-standing individual right but that is a matter which can be taken into account in the application of structured proportionality. At the same time, in assessing the force of the implied freedom, we need to remember that it protects responsible and representative government, as provided for by ss 7 and 24 of the Constitution, the central pillars of Australian constitutional democracy.
Thirdly, structured proportionality does not overtly reflect the separation of powers considerations which are a fundamental element in Australian constitutional law. Adrienne Stone seeks to make this point by suggesting that, in the Australian context, structured proportionality needs to incorporate a notion of ‘deference’ to legislative judgement. The expression ‘deference’ has been viewed with disfavour in Australia and England. The notion is better expressed as ‘respect’ for the authority of the legislative judgement under the Constitution, in the light of the constitutional separation of powers and the judiciary’s lesser competence to make value judgements on matters which are usually left to political judgement. That structured proportionality can accommodate such a notion was acknowledged by Aharon Barak, the arch-priest of structured proportionality, when he discussed ‘the zone of proportionality’, that is, the zone of legislative discretion. 1
In this respect, there is a case for saying that two of the issues presented by the structured proportionality analysis, necessity and balancing, would have been regarded in earlier times as lying beyond the scope of federal judicial power. The High Court has recently, however, taken a more expansive view of judicial power, without spelling out that view. At any rate it seems that the High Court now has no concerns about its constitutional capacity to deal with the issues presented for consideration by structured proportionality, despite the concerns voiced in the United Kingdom by Lord Sumption, most recently in his 2019 Reith Lectures.
The requirement of necessity may imply, as Gleeson CJ noted in Mulholland v Australian Electoral Commission, ‘different degrees of scrutiny’. 2 Rosalind Dixon suggests, adopting the approach advocated by Gageler J, 3 that the intensity of the necessity test should be calculated by reference to various factors; for instance, by considering whether a law imposes a complete or rather only a partial prohibition on certain forms of expression.
A significant weakness in structured proportionality is its inability to offer informed guidance on how ‘balancing’, the last of the issues which it presents for consideration, is to be carried out. Aharon Barak was conscious of this weakness and conceded that there was a case for resorting to categorisation. Tiered scrutiny is perhaps best regarded as an attempt by the Supreme Court of the United States to formulate such a categorised approach. For a variety of reasons, this approach has been favoured by neither Australian commentators nor the High Court. For my purposes, it is sufficient to say that the categories of tiered scrutiny appear to be too restricted, leading to a degree of inconsistency and uncertainty. It is for this reason that Rosalind Dixon proposes an approach which focusses on a number of relevant factors attracting four different levels of scrutiny. Ultimately this could lead to the acceptance of a number of categories, but it does not follow that they would be watertight or mutually exclusive categories as the relevant factors will vary in force and weight depending on the circumstances. Categorisation is seen at its best when the factors are constant and the divisions are mutually exclusive.
Calibrated scrutiny is likely to result in a standards-based approach rather than a rules-based approach. In other words, calibrated scrutiny is likely to favour a degree of flexibility, at least in the course of its development. Flexibility should not be regarded as the polar opposite of certainty. Flexibility, properly managed, is not inconsistent with certainty. And, as we know from experience, a rules-based approach does not always delivery certainty. Very often it leads to the making of distinctions which are less than compelling.
The advantage of calibrated scrutiny, over tiered scrutiny, is that the former can be tailored to Australian constitutional requirements and values as well as Australian constitutional precedents based on the implied freedom and the interests which it is designed to protect. For the High Court to adopt tiered scrutiny would run the risk of picking up the baggage of United States jurisprudence, much of which may not have relevance for us. In saying this I do not deny that the concept of calibrated scrutiny may have its origins in the United States notion of tiered scrutiny. But that history is of little moment. The reformulation of structured proportionality and, for that matter, tiered scrutiny into calibrated scrutiny, amounts to no more than adjusting foreign concepts to meet Australian constitutional requirements and traditions, a legitimate use of comparative law.