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Constitutional Implications in Australia
371
notable, however, that the rights it protects are extremely narrow or ‘partial’
compared to background rights commitments in Australian society. Indeed,
the Australian framers were either expressly antagonistic to the inclusion of
too many individual rights guarantees in the Constitution, concerned, as they
were, about maintaining the colonies’ racially discriminatory policies and pro-
moting the White Australia Policy, or unperturbed about the need for such
guarantees, being inclined to trust the democratic institutions of government
to provide the necessary protections.
121
Hilary Charlesworth has explained the
framers lack of concern with constitutional rights protection by reference to a
‘confidence in a philosophy of utilitarianism’.
122
In interpreting various express rights, the High Court has also adopted
an extremely narrow approach which largely eliminates any role in second-
guessing legislative choices regarding, for example, the appropriate relation-
ship between the government and the church under section 116 or when an
individual ought to be accorded the right to trial by jury under section 80.
Despite the adoption of a written constitution, Australian legal and politi-
cal elites have thus tended to maintain strong resistance to forms of judicial
review that depend on open-ended, proportionality-style judgments about the
justice or merits of legislative policies. This reflects a historically grounded,
cultural assumption of the wisdom of legislative judgment in achieving just,
fair and equitable government and the protection of individual liberty.
123
Where the Court has confronted issues involving proportionality-style
judgments, it has also often encountered resistance. This is particularly true
for areas touching on individual rights, or broad-ranging social and political
questions. In the context of section 92 of the Constitution, the constitutional
guarantee of freedom of interstate trade and commerce, for instance, the
Court has adopted a proportionality-style test largely without controversy.
Thus in Betfair v. Western Australia, in 2008, the Court indicated that the
preferred test for determining whether a burden on interstate trade and com-
merce would breach the guarantee should be one of ‘reasonable necessity’
for achieving a non-protectionist regulatory purpose or whether it was not dis-
proportionate to such a purpose.
124
The same is also true for attempts by the
121
See Dixon, Supra note 4; Sir Anthony Mason, ‘The Role of a Constitutional Court in a Fed-
eration: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal
Law Review 1, 4.
122
Charlesworth, Supra note 111, 197.
123
Jeffrey Goldsworthy, ‘The Constitutional Protection of Rights in Australia’ in Greg Craven
(ed.) Australian Federation Towards the Second Century (Melbourne: Melbourne University
Press 1992) 151, 152–4.
124
(2008) 234 CLR 418.
372
Rosalind Dixon and Gabrielle Appleby
Court to articulate limits on the scope of the Commonwealth’s purposive and
incidental legislative powers: in Burton v. Honan, a case involving the scope of
the Commonwealth’s power to seize goods as part of a customs regime, Dixon
CJ again held that the scope of the incidental power was to be understood in
terms of a test of ‘reasonable necessity’ and the proportionality judgment this
implies has occasioned little comment or resistance.
125
But in the domain of individual rights or areas involving broader social and
political choices, there has been far more resistance to such an approach. In
the context of the implied freedom of political communication, for exam-
ple, for a long period the Court explicitly argued that the proportionality-style
analysis that it engaged in in this context was quite different from the four
stage-test employed in foreign and international rights-jurisprudence – i.e.,
a test of the legitimacy of the government’s purpose, the suitability of the law
to achieving the stated objective, the necessity of the law to achieving that
objective and to which the law was adequate in the balance of benefits versus
costs it imposed or proportionate in the true or strict sense.
126
Indeed, there
was an explicit rejection by the Court of the idea that its test involved the
kind of subjective judicial ‘balancing’ of competing rights and interests of the
kind implicit in the fourth stage of any proportionality analysis. In Coleman v.
Power, for instance, McHugh J responded to Adrienne Stone’s argument that
the Court’s insistence that the implication was drawn from the text and struc-
ture of the Constitution disguised a value-laden form of review of legislative
action by denying the role of judicial value judgment in the test.
127
Only in 2015, in McCloy v. New South Wales, did a majority of the Court
endorse the three-stage proportionality test that is now seen in various forms
in Europe and in the Supreme Court of Canada, and for the first time explain
that the Court would often be engaged in a value judgment, a necessarily
somewhat subjective weighing of the objective and the rights incursion. Even
in this admission, the Court was also wary of claiming too broad a discre-
tion to review legislative policy. The majority explained the test ‘does not
entitle the courts to substitute their own assessment for that of the legislative
125
(1952) 86 CLR 169.
126
Moshen Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (Cambridge:
Cambridge University Press 2013); Alec Stone Sweet and Jud Mathews, ‘Proportionality Bal-
ancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72;
Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford:
Oxford University Press 2012); Vicki Jackson, ‘Constitutional Law in an Age of Proportionality’
(2015) 124 Yale Law Journal 3094.
127
Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the
Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 704.
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