Calibrated Proportionality

Abstract

The High Court currently applies two different tests to determine the validity of laws that effectively burden the implied freedom of political communication (‘IFPC’) under the Constitution—a test of ‘structured proportionality’ and one of ‘calibrated scrutiny’. Both tests have potential advantages, and disadvantages, but there is also a case that, over time, the Court should again adopt a single approach to assessing the validity of laws burdening the IFPC. The article therefore explores what it might mean to create a true hybrid between the two current approaches—that is, a test of ‘calibrated proportionality’. Such an approach, it suggests, should be understood as having three key dimensions: first, explaining how and when certain context-specific ‘calibrating’ factors could usefully inform a test of ‘necessity’ and ‘adequacy in the balance’ under a test of structured proportionality; second, showing how attention to constitutional values can help calibrate the intensity of the Court’s application of the tests; and third, suggesting a well-identified continuum for calibrating the intensity of judicial review, based on four broad categories of case.