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 under the Constitution – a test of ‘structured proportionality’ and one of ‘calibrated scrutiny’. Both tests have advantages, but also disadvantages. The article thus explores the possibility of an approach that combines some of the features, and advantages, of both approaches. It does so by proposing a test of ‘calibrated proportionality’, which looks to a range of context-specific factors and constitutional values to help calibrate the intensity of the Court’s application of the tests of ‘necessity’ and ‘adequacy in the balance’ under a test of structured proportionality.

Keywords: High Court, Constitutional Law, Proportionality, Implied Freedom, Political Communication, Australia, Constitution, Necessity, Adequacy