McCloy Symposium: Scott Stephenson on the Complications and Consequences of Constitutional Comparison

By Dr Scott Stephenson

McCloy Case Page

In McCloy v New South Wales [2015] HCA 34 for the first time a majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) endorsed proportionality analysis as the appropriate framework for determining whether a law violates the freedom of political communication, an implication derived from the Australian Constitution. In doing so, the majority turned to comparative materials, especially comparative constitutional scholarship, to explain and justify its decision. In this post, I consider the complications and consequences of the Court’s comparative engagement, examining the difficulties associated with drawing on the scholarship in this field before considering some implications of the Court’s move. I suggest that it gives greater prominence to two dimensions of constitutional adjudication that are typically not accorded priority, namely the value in providing legislatures with clarity about the limits of their powers and making value judgments explicit.

Complications: The necessary yet difficult task of comparatively engaging with proportionality

The decision to endorse proportionality analysis requires careful consideration of comparative case law and scholarship to ascertain what, precisely, proportionality analysis entails. While it may be, as the majority suggest, a ‘uniform analytical framework’ (at [74]), that framework does not have a uniform formulation or application. Some jurisdictions adopt a three-stage test, while others adopt a four-stage test (see [79] fn 100). In some jurisdictions, the majority of laws that fail proportionality analysis do so at the ‘necessity’ (least restrictive means) stage, while in others it is at the ‘adequate in its balance’ (proportionality in the strict sense) stage (Grimm, 2007).

Looking beyond Australia’s border to attempt to understand proportionality analysis is no easy task because one is faced with a sea of choice. Proportionality analysis was, along with judicial review, one of ‘the most successful legal transplants in the second half of the twentieth century’ (Kumm, 2004), and is employed by courts across Europe at both the national and supranational level as well as in Canada, Israel and South Africa. It has exhibited, Alec Stone-Sweet and Jud Mathews suggest, ‘a viral quality, spreading relatively quickly from one jurisdiction to another’. Not only does proportionality analysis vary across jurisdictions, but also within jurisdictions across time (see, eg, Choudhry, 2006). It has spawned ‘a plethora of articles and books’ seeking to celebrate, criticise, analyse and amend it.

It is, therefore, striking that the majority’s judgment discusses proportionality analysis primarily by reference to a single source, a book by Aharon Barak, a Professor of Law and former President of the Supreme Court of Israel (at [74], [80], [82], [87]–[88], [92]). This decision no doubt reflects the prior use of Barak’s work by Crennan, Kiefel and Bell JJ in Tajjour v NSW [2014] HCA 35 (at [110]–[131]), which is then picked up by the written submissions of the Commonwealth and Queensland in McCloy. The majority’s judgment in McCloy also refers to articles by Dieter Grimm and Gertrude Lübbe-Wolff, both Professors of Law and former Justices of the Federal Constitutional Court of Germany (at [67], [77], [87]), and contains quotations from two decisions of the Supreme Court of the United Kingdom, Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 and Pham v Secretary of State for the Home Department [2015] UKSC 19 (at [77]–[78]).

Quite apart from questions about the suitability of incorporating proportionality analysis into Australia (raised most prominently by Gageler J in McCloy), the highly selective use of comparative scholarship raises questions about justifying the choice of particular sources. Although Barak is a former judge (as are Grimm and Lübbe-Wolff), he is writing in his capacity as a professor, not a judge. As a result, unlike a foreign judgment, which commands support partly due to the institution to which it attaches, his views command only as much support as the quality of the argument merits. And in the case of proportionality, there is no shortage of alternative scholarly views challenging the position he takes in terms of its advantages and requirements (see, eg, Tsakyrakis, 2009; Webber, 2009). Does the Court need to justify the use of particular pieces of comparative scholarship to the neglect of others? And if so, according to what criteria? And if not, is the Court not engaging in a practice, as Chief Justice John Roberts (quoted here) described it in the US context, ‘like looking out over a crowd and picking out your friends’? If it is acceptable (or, indeed, necessary) for the Court to be highly selective with little or no justification, how do — and should — litigants select, employ and challenge the use of comparative scholarship?

Consequences: How McCloy looks different from the Court’s typical approach to constitutional adjudication

Putting questions over how to engage with comparative scholarship to one side, the majority’s use of such materials produces a judgment that accords greater priority to two dimensions of constitutional adjudication that typically receive little recognition from the Court. As a result, the turn to comparative scholarship appears to have an effect that extends beyond the endorsement of proportionality analysis as a framework for evaluating the freedom of political communication, pointing to a potential shift in how the Court understands its constitutional role.

First, the majority states that one of the advantages of proportionality analysis is ‘transparency’ (at [74]):

Its structured nature assists members of the legislature, those advising the legislature, and those drafting legislative materials, to understand how the sufficiency of the justification for a legislative freedom will be tested. Professor Barak suggests that ‘members of the legislative branch want to know, should know, and are entitled to know, the limits of their legislative powers.’

While it would be an overstatement to say that, prior to McCloy, the Court was wholly unconcerned with a legislature’s ability to know the limits of its power, there is ample evidence that it was not a priority. The Court has often engaged in minimalist decision-making that decides only as much as is necessary to resolve the case before it, leaving a legislature with uncertainty, and sometimes significant uncertainty, about the limits of its power. Take, for example, Williams v Commonwealth (No 1) [2012] HCA 23, which generated considerable uncertainty about the scope of the executive’s non-statutory power and what the federal legislature needed to do, and could do, to rectify it. Or Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53, which left open the question whether the 4:3 decision in Al-Kateb v Godwin [2004] HCA 37, concerning the federal legislature’s power to authorise executive detention, should be reconsidered. More generally, the Court’s narrow conception of judicial power, which prevents the federal legislature from conferring jurisdiction on the Court to answer advisory opinions, shuts off one mechanism that legislatures in other jurisdictions such as Canada use to clarify the scope of their power.

Second, the majority state that another advantage of proportionality analysis is, quoting an article by Lübbe-Wolff, to ‘help control intuitive assessments, [and] make value judgments explicit’ (at [77]), repeating the point about making value judgments more explicit with a quotation from Lord Reed JSC in Bank Mellat (at [78]). The acknowledgement that values play a role in constitutional adjudication and that this role should be made explicit in a ‘uniform analytical framework’ (at [74]) reflects a shift in emphasis given, first, the implicitly, and sometimes explicitly (see, eg, Dixon CJ’s comments recorded at (1952) 85 CLR xv), legalist or formalist approach to constitutional interpretation adopted by the Court (see generally Stellios, 2015) and, second, the Court’s traditional resistance to overarching theories of constitutional construction (Hayne J, 2006). (Indeed, Gageler J resists proportionality analysis in part because he is ‘not convinced that one size fits all’: at [142].) The precise extent to which it marks a shift in emphasis depends, of course, on a number of crucial considerations, such as what is meant by value judgments, what is meant by legalism or formalism, and what is meant by overarching theories. Even though it is not entirely novel for the Court to acknowledge the role of values of in constitutional adjudication, these statements are unusual to the extent that they do not merely acknowledge — perhaps reluctantly or quietly — this role, but seek to place it front and centre, adopting a framework that will help ensure they are made explicit in each and every judgment on the freedom of political communication.

In short, the Court’s invocation of comparative constitutional scholarship in McCloy is not without complications or consequences. The precise extent of these complications and consequences will invariably be worked out in future judgments. In the meantime, the Court’s decision in McCloy contributes to global spread of proportionality analysis and is, therefore, likely to generate even more comparative constitutional scholarship on the subject.

AGLC3 Citation: Scott Stephenson, ‘McCloy Symposium: Scott Stephenson on the Complications and Consequences of Constitutional Comparison’ on Opinions on High (2 November 2015) <>.

Scott Stephenson is a Lecturer at Melbourne Law School