All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia

2019 ◽  
Vol 47 (4) ◽  
pp. 551-582
Author(s):  
Evelyn Douek
Keyword(s):  
Political Communication ◽  
Separation Of Powers ◽  
Order Effects ◽  
High Court ◽  
Constitutional Culture ◽  
Institutional Costs ◽  
Judicial Reasoning ◽  
Theoretical Question ◽  
High Court Of Australia ◽  
First Time

In 2015, a majority of the High Court of Australia incorporated structured proportionality testing into Australian constitutional law for the first time, but the test’s suitability for Australian law has been contested ever since. The recent case of Clubb is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. This article surveys the three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate, that it involves judges transgressing the separation of powers, and that it is inappropriate in the unique context of the implied freedom of political communication (‘the freedom’). There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of ‘ compared to what?’ Many of the criticisms levelled against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is ‘appropriate and adapted’ to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly proposed alternative of a categorical approach. The particular method of judicial reasoning in cases concerning the freedom might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second-order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti-structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the ‘worst’ of the available options. This article argues that structured proportionality is not that ‘worst’ option.

scholarly journals FOI and the Freedom of Political Communication

2007 ◽  
Vol 12 (1) ◽  
pp. 193 ◽  
Author(s):  
Anthony Gray
Keyword(s):  
Political Communication ◽  
Political Freedom ◽  
Freedom Of Information ◽  
Constitutional Rights ◽  
Representative Government ◽  
High Court ◽  
Important Decision ◽  
High Court Of Australia ◽  
Elected Representatives

<p>There are very few freedom of information cases that have been heard by the High Court of Australia and this article discusses freedom of information rights in the context of the Court’s recent important decision in McKinnon. After reviewing the judgments in the case, the author advocates that freedom of information rights must not be seen in isolation, but in the context of broader constitutional rights, including the implied right to political freedom of communication, as well as the doctrine of representative government. It is suggested that the effect of the decision is to unduly narrow the rights citizens would otherwise have under freedom of information laws, and is contrary to the spirit of such laws. It compromises the ability of the sovereign people to exercise that sovereignty over their elected representatives. Placing freedom of information rights into this broader constitutional perspective, the decision can be seen as out of step with the Constitution and its prescribed system of government. More broadly, it is considered that freedom of information principles must be interpreted within the existing constitutional rights framework.</p>

Re-Evaluating the Doctrine of Deference in Administrative Law

2017 ◽  
Vol 45 (4) ◽  
pp. 597-625 ◽  
Author(s):  
Janina Boughey
Keyword(s):  
Separation Of Powers ◽  
Administrative Law ◽  
Administrative Discretion ◽  
High Court ◽  
Executive Action ◽  
The Common ◽  
The Uk ◽  
High Court Of Australia ◽  
Development Assessment ◽  
The City

It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission1 as authority. In that case, the High Court of Australia indicated that Australia's strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference – deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.

Part VII Rights, Ch.39 Expression

2018 ◽  
Author(s):  
Stone Adrienne
Keyword(s):  
Political Communication ◽  
Constitutional Law ◽  
Freedom Of Expression ◽  
High Court ◽  
Full Picture ◽  
High Court Of Australia ◽  
The Way

This chapter traces the way in which freedom of expression is recognized in Australian constitutional law. The absence of a provision protecting freedom of expression is just one aspect of a widely noted feature in the Australian Constitution, yet the full picture is considerably more complicated. Freedom of expression has long had a foothold in Australian constitutional law. In 1992, the High Court of Australia developed a doctrine known as ‘the freedom of political communication’ which, to some extent, operates like a guarantee or right of freedom of expression. The chapter considers the extent to which the freedom of political communication resembles an explicit and generally expressed right of freedom.

Public Servants and the Implied Freedom of Political Communication

2021 ◽  
Vol 49 (1) ◽  
pp. 3-39
Author(s):  
Anthony Davidson Gray
Keyword(s):  
Political Communication ◽  
Sufficient Evidence ◽  
Representative Government ◽  
Public Servants ◽  
High Court ◽  
Government Functions ◽  
Public Servant ◽  
The People ◽  
High Court Of Australia ◽  
Do So

The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case.

scholarly journals STANDARD OF PROOF, UNPREDICTABLE BEHAVIOUR AND THE HIGH COURT OF AUSTRALIA’S VERDICT ON PREVENTIVE DETENTION LAWS

2005 ◽  
Vol 10 (1) ◽  
pp. 177 ◽  
Author(s):  
ANTHONY GRAY
Keyword(s):  
At Risk ◽  
Separation Of Powers ◽  
Title Page ◽  
Preventive Detention ◽  
High Court ◽  
Standard Of Proof ◽  
High Court Of Australia ◽  
Rate Of Success

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>Preventive detention laws authorize courts to order the continued detention in prison of a person who has served their allocated term of imprisonment, but who are thought to be at risk of re-offending if released. They raise fun- damental issues about the separation of powers, the purpose of incarcera- tion, and the standard of proof which is/should be required to authorize detention. They assume that it is possible to predict, with a satisfactory rate of success, whether or not a past offender would if released commit further offences. Recently, a majority of the High Court of Australia validated such legislation. The author in this article explains his reasons for disagreeing with the verdict of the Court in this matter.</span><span>] </span></p></div></div></div>

The Australian High Court's Use of the Western Sahara Case in Mabo

1996 ◽  
Vol 45 (4) ◽  
pp. 923-927
Author(s):  
Shirley Scott
Keyword(s):  
International Law ◽  
Indigenous People ◽  
Legal Rights ◽  
Privy Council ◽  
Western Sahara ◽  
High Court ◽  
Terra Nullius ◽  
Law And Politics ◽  
High Court Of Australia ◽  
First Time

Recent cases before the High Court of Australia have raised the question as to the appropriate degree to which international law should influence Australian law and politics.1 Crucial to the reasoning in the leading judgment of the landmark 1992 Mabo case,2 by which the Australian judiciary recognised for the first time a native title to land, was the finding that Australia had not been terra nullius at the time of colonisation. The leading judgment accepted the categorisation of Australia as a settled colony which had been established by the Privy Council in Cooper v. Stuart.3 In this judgment Lord Watson had held that Australia, as a “settled” colony, had received transplanted British law “except where explicitly changed or considered irrelevant”.4 This had given rise to the assumption, confirmed by Milurrpum v. Nabalco Ltd (the Gove Land Rights case of 1971) that, since no legal rights to land of indigenous people existed in British law and none had been explicitly acknowledged in relation to Australia, no basis existed for their later recognition.5 The leading judgment in Mabo went on to declare, however, that the notion that British law had been transplanted into a settled colony had been based on the assumption that the “indigenous people of a settled colony were … without laws, without a sovereign and primitive in their social organisation”.6 Since “the facts as we know them today” do not “fit this theory” the leading judgment asserted there to be “no warrant for applying in these times rules of the English common law which were a product of that theory”.7

Cyberpolitik

ADALAH ◽  
2020 ◽  
Vol 4 (2) ◽  
Author(s):  
Munadhil Abdul Muqsith
Keyword(s):  
Political Communication ◽  
Total Population ◽  
Service Providers ◽  
Mailing List ◽  
The Internet ◽  
Internet Service Providers ◽  
Internet Service ◽  
Internet Users ◽  
Internet Media ◽  
First Time

Abstract:The internet developed for the first time in Indonesia in the early 1990s. Starting from the pagayuban network, it is now expanding without boundaries anywhere. A survey conducted by the Indonesian Internet Service Providers Association (APJII) said that the number of internet users in Indonesia in 2012 reached 63 million people or 24.23 percent of the country's total population. Next year, that figure is predicted to increase by close to 30 percent to 82 million users and continue to grow to 107 million in 2014 and 139 million or 50 percent of the total population in 2015. million people. This matter also results in political communication with the internet media, or is often said to be cyber politics. Cyber politics in Indonesia has faced growth in recent years. There are many facilities that support the growth of cyber politics, such as Facebook, Twitter, mailing list, YouTube, and others.Keywords: Cyberpolitik, Internet  Abstrak:Internet berkembang pertama kali di Indonesia pada awal tahun 1990-an. Diawali dari pagayuban network kini berkembang luas tanpa batas dimanapun juga. Suatu survei yang diselenggarakan Asosiasi Penyelenggara Jasa Internet Indonesia (APJII) mengatakan kalau jumlah pengguna internet di Indonesia tahun 2012 menggapai 63 juta orang ataupun 24,23 persen dari total populasi negeri ini. Tahun depan, angka itu diprediksi naik dekat 30 persen jadi 82 juta pengguna serta terus berkembang jadi 107 juta pada 2014 serta 139 juta ataupun 50 persen total populasi pada 2015. juta orang. Perihal ini pula berakibat pada komunikasi politik dengan media internet, ataupun kerap diucap dengan cyber politic. Cyber politic di Indonesia hadapi pertumbuhan sebagian tahun terakhir. Banyaknya fasilitas yang menunjang pertumbuhan cyber politic semacam terdapatnya facebook, Twitter, mailing list, youtobe, serta lain-lain.Kata Kunci: Cyberpolitik, Internet 

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

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