Moving Beyond the Common Law Objection to Structured Proportionality

Abstract

This article examines the claim that the adoption of structured proportionality testing in Australian constitutional review is ill-suited to Australia’s common law tradition. That objection has been stated by some members of the High Court and scholars, though the precise basis of the objection has not been clearly articulated. This article clarifies and evaluates this objection, setting out a number of distinct concerns which emerge from the reasoning of the minority justices. Ultimately, the article argues that the objection has been too starkly cast and that Australia’s common law tradition does not present an insurmountable obstacle to the introduction of proportionality testing in constitutional review.