Parliaments, Proportionality and Facts

Abstract

One of the key doctrinal developments of the High Court of Australia in relation to its constitutional limitations jurisprudence is the structured test of proportionality. In recent cases involving the implied freedom of political communication, the Court has indicated that its constitutional adjudicative function will be informed by the extent to which a parliament has, or has not, considered issues of proportionality. In this article, we examine these developments through the parliamentary institutional lens: we ask what the implications are for Australian parliaments if the Court adopts an approach to proportionality reasoning that is sensitive to parliamentary fact-finding and deliberations. We explore how the Court’s restraint in applying the proportionality test might have two, interrelated, consequences. The first is the type of factual material that the political branches should be seeking when they make determinations about whether a law is ‘reasonably necessary’ to achieve a stated objective, and whether the regime has struck the most appropriate ‘balance’ between competing claims on the public good; and how parliamentarians should deliberate about that material. The second is whether evidence could be led in court to satisfy the judiciary that a parliament has considered the relevant facts, and deliberated appropriately about them, and, if so, the process that should be adopted for leading such evidence.