Australian Constitutional Culture and the Reception of Structured Proportionality

Australian public law is in a time of change. Notwithstanding the absence of a Bill of Rights, the High Court has imported a doctrine of structured proportionality into its implied freedom of political communication jurisprudence. However, Australia has a distinctive constitutional culture, shaped by a utilitarian political culture and a ‘legalistic’ approach to constitutional interpretation that eschews values-based reasoning. How will these factors inform the reception of structured proportionality in Australian public law? The paper traces the contentious nature of structured proportionality on the High Court and discusses its status as a ‘tool of analysis’ as opposed to a principle. The paper considers whether structured proportionality is leading the High Court to embrace values-based reasoning or if the Court is avoiding those aspects of the test that require engagement with values. The paper assesses the status and future of structured proportionality in Australian public law.