‘Proportionality in Comparative
Analysis’
Human Rights under the Charter:
The Development of Human Rights
Law in Victoria
8 August 2014
Professor Bryan Horrigan BA, LLB (Qld), DPhil (Oxon)
Dean, Faculty of Law, Monash University
Author, Corporate Social Responsibility in the 21st Century (Edward Elgar)
Former Consultant, Allens <> Linklaters
1
Overview
•
•
•
•
Broader context and politics of proportionality
Victorian Charter provisions on proportionality
Victorian Charter’s proportionality dimensions
Comparative proportionality analysis – judicial
and academic
• Framework for two-way interaction between
Victorian Charter and comparative
proportionality jurisprudence
2
Broader Context and Politics of
Proportionality
3
4
GLOBAL LAW SOURCES
FORMULATION AND
INTERPRETATION OF
DOMESTIC LAW
Foreign domestic
court decision
USE OF SOURCES
Refusal to engage (refusal)
Historical commentary (history)
Foreign constitution
International or
transnational court
decision
Statutory
interpretation
Common law
reasoning
Highlighting institutional differences
(differences)
Courts
Considering trends & possible
consensus in interpretation (trends)
Treaties
General principles of
international law
State practice
Parliamentary
scrutiny of
legislation
Acknowledging expertise of specialist
body (deference)
Executive
Anticipating consequences of
interpretation (anticipation)
Legislature
Referral of legal question to foreign
decision-maker (referral)
Mediating between competing
interpretations (mediation)
This flowchart draws on the analysis of foreign law use in Ganesh Sitaraman, ‘The Use
and Abuse of Foreign Law in Constitutional Interpretation’ (2009) 32 Harvard Journal of
Law & Public Policy 653 and Vicky C Jackson, ‘Constitutional Comparisons:
Convergence, Resistance, Engagement’ (2005) 119 Harvard Law Review 109
Rhetorical support (rhetoric)
Filtering factors
Authoritative
commentaries and
interpretations of
international law
Engagement with
legal content
Persuaded by or engaging with judicial
reasoning (reasoning)
Constitutional
interpretation
Legislative
drafting &
policy
formulation
Acknowledging global influences &
developments on similar legal question
(influences)
Norm application (norms)
International or
transnational arbitral
decision
Other determinations
of international law (eg
UN HRC complaints)
Context
Foreign statute
Proportionality – Human Rights Contexts
• ‘Human rights legislation, which declares
fundamental rights or freedoms but, recognising
that they are rarely absolute, permits limits or
restrictions provided they can be “demonstrably
justified in a free and democratic society”, is the
context in which current jurisprudence on
proportionality is most likely to be seen at work.’
• Chief Justice Gleeson in Mulholland v Australian
Electoral Commission [2004] HCA 41 at [36]
5
The Problem Defined
• ‘The concept of proportionality has both the
advantage that it is commonly used in our
jurisdictions in similar fields of discourse, and the
disadvantage that, in the course of such use, it
has taken on elaborations that vary in content,
and that may be imported … into a different
context without explanation.’
• Chief Justice Gleeson in Mulholland v Australian
Electoral Commission [2004] HCA 41
6
Proportionality – Areas of Law
• Judicial review of the constitutionality of legislative and
executive acts:
– Eg proportionality in the tests for allowable limits upon
constitutionally protected freedom of political expression under
Australian Constitution
• Basis for administrative law review:
– Eg 1 proportionality v reasonableness as grounds for judicial
review of administrative action
– Eg 2 pervasiveness of proportionality as a basis of judicial
review: see debate in Kennedy v The Charity Commission [2014]
UKSC 20 (Lords Mance and Carnwath)
• Rights-limiting decisions under bills/charters of human
rights (eg Victoria, ACT, South Africa, UK, Canada, New
Zealand)
7
The Politics of Proportionality
1. Political legitimacy?: Appropriateness and
leveraging of courts’ rights-limiting decisions
trumping others institutions’ rights-limiting
decisions
2. Institutional role?: What judicial role is
constitutionally/legislatively allowed for rightslimiting decisions?
3. Statutory interpretation?: Role in statutory
interpretation by courts v. non-interpretative role
by courts (eg declarations of inconsistency) and
others (eg rights-compatibility assessments)
8
The Politics of Proportionality
4.
5.
6.
Analytical tool?: A structured process of decision-making v. an
outcome-determining test (and sub-tests)
Comparative correspondence?: Coherent body of comparative
proportionality jurisprudence v. fragmented jurisdiction-specific
bodies of proportionality law
Transnational modelling?: Locating proportionality within model
structures for:
i.
ii.
iii.
iv.
v.
vi.
Constitutional, legislated, and judge-made norms of statutory interpretation
Rights-sensitive compatibility of laws
Rights-limiting decision-making criteria
Declarations of inconsistency
In-built limits of particular rights
Reference to relevant comparative body of law for guidance
9
Victorian Charter Provisions
10
The Broader Proportionality Clauses of NZ and
Canada
Section 5 of the New Zealand Bill of Rights Act 1990 (NZ):
‘… the rights and freedoms contained in this Bill of Rights may
be subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic
society.’
Section 1 of the Canadian Charter of Rights and Freedoms
states that:
‘The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.’
11
Christian Youth Camps v Cobaw Community Health Services
[2014] VSCA 75 per Redlich JA
• ‘The concept of proportionality – the
identification and weighting of the conflicting
interests and the evaluation of the extent to
which the conflict may be minimised by
careful choice of means – finds its form in part
in s 7(2) of the Charter, which states that
rights are subject to “such reasonable limits
prescribed by law as can be demonstrably
justified in a free and democratic society”.’
12
Section 7(2) of the Charter
Section 7(2) of the Charter of Human Rights and Responsibilities 2006 (Vic) :
‘A human right may be subject under law only to such reasonable limits as can be demonstrably justified
in a free and democratic society based on human dignity, equality and freedom, and taking into account
all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation
seeks to achieve.’
Compare: Section 36(1) of the Constitution of the Republic of South Africa Act 1996 (South Africa):
‘(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the
extent that the limitation is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.’
13
Section 32(1) and its Equivalents (Interpretation
Clauses)
Section 32(1) of the Charter of Human Rights and Responsibilities 2006
(Vic):
‘So far as it is possible to do so consistently with their purpose,
all statutory provisions must be interpreted in a way that is compatible
with human rights.’
Section 3(1) of the Human Rights Act 1998 (UK):
‘So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible
with the Convention rights.’
Section 6 of the New Zealand Bill of Rights Act 1990 (NZ):
‘Wherever an enactment can be given a meaning that is consistent with
the rights and freedoms contained in this Bill of Rights, that meaning shall
be preferred to any other meaning.’
14
Section 32(2) and its Equivalents
(Foreign Law Clauses)
Section 32(2) of the Charter of Human Rights and Responsibilities 2006 (Vic):
‘International law and the judgments of domestic, foreign and international courts and tribunals
relevant to a human right may be considered in interpreting a statutory provision.’
Section 2(1) of the Human Rights Act 1998 (UK) allows courts to take into account any:
‘(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever
made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in
which that question has arisen.’
Section 39(1) of the Constitution of the Republic of South Africa Act 1996 (South Africa)
requires that courts interpreting the bill of rights:
‘… (b) must consider international law; and
(c) may consider foreign law.’
15
Victorian Charter’s
Proportionality Dimensions
16
Proportionality Dimensions I
• #1 Individual Vic Charter rights with in-built
limits/elements going to proportionality:
– Eg 1: notions of ‘arbitrariness’ implicated in rights to
life (s 9), right to privacy (s 13), and right to
liberty/security ( s21)
– Eg 2: assessments of reasonable necessity implicated
in freedom of expression (s 15) and humane
treatment in detention (s 22)
– Eg 3: aspects of discrimination (eg discriminatory
effect of chosen means) implicated in rights of
recognition and equality (s 8), protection of families
and children (s 17), participation in public life (s 18),
due respect for cultural rights (s 19), and rights in
criminal proceedings (s 25)
17
Proportionality Dimensions II
• #2 Express limits on Vic Charter rights generally,
under the rights-limiting s 7, implicated in:
– Rights-sensitive statutory interpretation under s 32(1),
according to some Victorian/HCA judges;
– Exercise of judicial power under s 36 to make ‘a
declaration of inconsistent interpretation’ about
legislation’s rights-incompatibility
– Statements of rights-compatibility under s 28 by
Victorian parliamentarians introducing Bills
– Pre-enactment scrutiny for rights-compatibility under
s 30 by Victorian Parliament’s Scrutiny of Acts and
Regulations Committee
18
Proportionality Dimensions III
• #3 Co-extensive operation in statutory
interpretation of :
–
–
–
–
Ordinary norms of statutory interpretation
Rights-sensitive statutory interpretation under s 32(1)
Principle of legality
Authorised reference to comparative proportionality
jurisprudence under s 32(2)
• Query:
– Potential reach of proportionality into statutory
interpretation norms and principle of legality
– Knock-on effect for post-Momcilovic resolution of the
intermingling of the rights-limiting s7 and rightssensitive interpretation under s 32
19
Patrick’s Case
• ‘(T)he principle of legality is a strong presumption that
legislative provisions are not intended to override or interfere
with fundamental common law rights and freedoms and
basic rights … Applying this principle to legislation which
unmistakably intends some interference to be authorised but
the scope of the permitted interference is in issue, it is first
necessary to identify the right or freedom which is said to be
infringed and consider the importance of the interests which
it protects in the particular circumstances. Then it is
necessary to identify the nature and extent of the
interference by, and the purposes of the statutory provisions
in question. If the interference complained of goes beyond
what is shown to be reasonably necessary to meet a
substantial and pressing need or legitimate aim, the proper
interpretation will be that the interference is beyond the
scope of the provision.’ (emphasis added)
20
Comparative Proportionality
Analysis – Judicial and Academic
21
Four-Stage Proportionality Approach - Academic
• #1 ‘Legitimacy’: Can government lawfully limit this right?
• #2 ‘Suitability’: Does the chosen rights-limiting measure (ie
means) rationally relate to chosen policy objectives (ie
ends)?
• #3 ‘Necessity’: Is the chosen means (ie means) the least
restrictive means for achieving the chosen policy objectives
(ie ends)?
• #4 ‘Balancing’ (ie ‘Proportionality in the strict sense’): Do
the benefits of this rights-limitation by the chosen means
outweigh the costs incurred by infringing the right?
• (Sweet and Matthews, ‘Proportionality Balancing and
Global Constitutionalism’, 2008)
22
Four-Stage Proportionality Approach – Judge Barak
• Proportionality’s four aspects of worthiness:
– #1 worthiness of governmental objective, assessed in
terms of its rights-sensitivity
– #2 first-order worthiness of the chosen means of
achieving that objective, assessed in terms of ‘fit’ as a
matter of rationality
– #3 second-order worthiness of the chosen means,
assessed in terms of minimal rights-intrusion as a
matter of necessity
– #4 third-order worthiness of the chosen means,
assessed in terms of the soundness of the relation
between the chosen means and ends, as a matter of
‘proper [or due] proportion’
23
Four-Stage Proportionality Approach – Judicial (UK)
• ‘The De Freitas formulation has been applied by the House of Lords and
the Supreme Court as a test of proportionality in a number of cases under
the Human Rights Act … The judgment of Dickson CJ in Oakes provides the
clearest and most influential judicial analysis of proportionality within the
common law tradition of legal reasoning … The approach adopted in
Oakes can be summarised by saying that it is necessary to determine (1)
whether the objective of the measure is sufficiently important to justify
the limitation of a protected right, (2) whether the measure is rationally
connected to the objective, (3) whether a less intrusive measure could
have been used without unacceptably compromising the achievement of
the objective, and (4) whether, balancing the severity of the measure’s
effects on the rights of the persons to whom it applies against the
importance of the objective, to the extent that the measure will
contribute to its achievement, the former outweighs the latter. The first
three of these are the criteria listed by Lord Clyde in De Freitas, and the
fourth reflects the additional observation made in Huang.’
• (Lord Reed in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39)
24
Four-Stage Proportionality Approach – Judicial (Can)
• ‘The concept of proportionality finds its roots in ancient
and scholastic scholarship on the legitimate exercise of
government power. Its modern articulations may be traced
to the Supreme Court of Germany and the European Court
of Human Rights.’
• ‘This Court in Oakes set out a test of proportionality that
mirrors the elements of this idea of proportionality – first,
the law must serve an important purpose, and second, the
means it uses to attain this purpose must be proportionate.
Proportionality in turn involves rational connection
between the means and the objective, minimal impairment
and proportionality of effects.’ (emphasis added)
• (Chief Justice McLachlin for the Court in A-G of Canada v
JTI-Macdonald Corp [2007] 2 SCR 610)
25
Four-Stage Proportionality Approach - Academic
• ‘Although Oakes is recognised as a landmark case, it introduced the
four-step proportionality analysis to Canadian law with relatively
little fanfare … What is striking is that the Oakes Court made no
reference to foreign antecedents of its proportionality analysis, and
referenced no other authority. The formula presented in Oakes is so
close to the German version of [proportionality analysis] that we
presume the Court was familiar with German doctrine. The
Canadian Supreme Court does not avoid citing foreign law on
principle; indeed, discussions of foreign law are quite common …
The silence here suggests that, rather than resting on a foreign
pedigree, the [C]ourt wishes to present proportionality as a
reasoned and sensible approach to the particular problem posed by
Charter rights.’
• (Sweet and Matthews, ‘Proportionality Balancing and Global
Constitutionalism’, 2008)
26
Section 7(2) and Oakes
Sufficient
Importance
Warren CJ, DAS v Victorian
Human Rights & Equal
Opportunity Commission
[2009] VSC 381 at [148]
Rational
Connection
Minimal
Impairment
Proportionality in
the Strict Sense
‘paras (a)-(e)… broadly correspond to the proportionality test identified in
Oakes’
Bell J, Re Kracke and Mental
Health Review Board [2009]
29 VAR 1, cited in PJB v
Melbourne Health State
Trustees Ltd at [308]
s7(2)(b)
s7(2)(d)
s7(2)(e)
No comment made
Crennan and Kiefel JJ,
Momcilovic v R
Ss7(2)(a)-(d)
No comment
made
S7(2)(e)
Ss7(2)(a)-(d)
27
After Momcilovic: the Court of Appeal’s Interpretation
of the interaction between ss7(2) and 32(1)
Overall assessment
Slaveski v Smith
Assessment of split in the High
Court Bench
Warren CJ, Nettle and Redlich JJA (Joint/Unanimous):
[2012] VSCA 25 (unreported)
Warren CJ, Nettle and Redlich 
JJA

At [22]: If no ratio arose from Momcilovic on this question, the
VSCA could be bound to follow its own decision in Momcilovic 
unless it is 'clearly wrong’, but ‘[i]t is unnecessary to decide’.

Warren CJ, Cavanough AJA:

At [28]-[29]: ‘there seems to be a 4:3 majority in the High
Court that s 7(2) informs the s 32(1) interpretative task.’ But,
‘the dissenting judgments of Hayne and Heydon JJ could not
form part of the ratio of Momcilovic and hence there is no
VSCA 91 (unreported) Warren
ratio on this point in the High Court’
CJ, Nettle JA and Cavanough 
At [31] ‘It is unnecessary to decide [whether the VSCA is
AJA
bound by its Momcilovic decision] in this case’
Nettle JA:

At [142]: ‘There being no majority view… it is appropriate to
adhere to [the VSCA’s approach in Momcilovic] until and
unless the High Court determines that it is incorrect’
Noone (Director of
Consumer Affairs
Victoria) v Operation
Smile (Aust) Inc [2012]




Nigro & Ors v Secretary, Redlich, Osborn and Priest JJA (Joint/Unanimous)
Department of Justice
[2013] VSCA 213
Redlich, Osborn,Priest JJA

At [88]: ‘Slaveski and Operation Smile have left open the

question whether this Court should follow its own decision in
Momcilovic… it is unnecessary to resolve this uncertainty.’
3:4 split
At [21]: French, Crennan and Kiefel
held s7(2) not to inform s32
At [21]: Bell, Gummow, Hayne and
Heydon held s7(2) does inform s32
At [22]: But Hayne and Heydon
dissented as to the final orders
3:4 split
At [27]: Precisely the same
assessment as Slaveski above
3:3 split
At [140]: French, Crennan and Kiefel
held s7(2) not to inform s32
At [141]: Bell, Gummow and Hayne
held s7(2) does inform s32
At [141]: But Heydon J held s32 to be
invalid, and does not count
3:4 split
At [87]: Cited and approved the
breakdown of judgments given in
28
Slaveski
Momcilovic Arguments Against Section 7 and 32
• 1A: Reference to legislative ‘purpose’ makes s 32(1) coextensive with ordinary norms of statutory
interpretation (cf forced rights-based interpretation)
• 2A: Intermingling rights-sensitive interpretation under
s 32(1) with rights-limiting under s 7 risks diluting full
scope of guaranteed rights
• 3A: Intermingling of rights-sensitive and rights-limiting
imperatives not automatic across jurisdictions
• 4B: Combining the two provisions risks differing
statutory interpretation results by courts, public
bodies, and others with Charter responsibilities
29
Contingent Responses on Section 7 and 32
• 1B: What if (a) ordinary statutory interpretation norms
and/or (b) the principle of legality do/can embrace
proportionality?
• 2B: Capacity to distinguish between different rightsbased functionalities at different stages of reasoning
• 3B: Still a case-by-case assessment and intermingling
not automatically precluded either
• 4B: Synchronisation and guidance on intermingling
from courts to others (eg rights-compatibility extrinsic
material informing judicial interpretation of laws under
legislative interpretation rules)
30
Framework for Two-Way Interaction
between Victorian Charter and
Comparative Proportionality
Discourse
31
Comparative Framework Possible?
• German and EU uses of proportionality, especially ECHRinfusion of UK human rights law
• HCA’s constitutional references to proportionality (eg
Justice Kiefel on proportionality ‘sub-principles’ of
‘suitability’, ‘necessity’, and ‘proportionality in the strict
sense’, in Rowe v Electoral Commissioner)
• South African, Victorian, and ACT rights-limiting provisions
• Canadian rights-limiting provisions
• Landmark De Freitas (UK) and Oakes (Can) tests
• Subsequent Bank Mellat (UK) reformulation
• Hansen (NZ) tests
• VCA and HCA pre-Momcilovic, Momcilovic, and postMomcilovic cases
32
Comparative Proportionality Framework – 5 Elements
• #1 A standpoint from which to examine what is unique, common, and
distinctive about the Vic Charter, as one model amongst others in
comparative proportionality jurisprudence
• #2 Located within the taxonomy of proportionality across jurisdictions
• #3 Accommodates spectrum of exclusion-resistance-customisationconvergence-divergence-uniqueness within the landscape of comparative
proportionality jurisprudence
• #4 A baseline for analysing and using:
– An order of questions
– A correlative set of thematically labelled standards
• #5 Victorian-focused position on the proportionality landscape, but
reflexive in nature and outlook:
– From the outside in (ie comparative proportionality jurisprudence’s
relevance for the Vic Charter’s work)
– From the inside out (ie what the Vic Charter’s work contributes to
comparative proportionality jurisprudence)
33
Conceptual Framework I
Step-by-Step Focus of Enquiry
Correlative Framing Standard(s)
• Q1: Is this particular institution
the right one to make relevant
decisions about the lawfulness of
governmental interference with
human rights, and for what
purpose(s)?
• Q2:Has the particular limit upon a
particular human right been done
validly under the law?
• Q3: Is the particular limit upon a
particular human right of a kind
that is justified according to
democratic and other public
values?
• S1: ‘(Institutional) Propriety’
(aka ‘legitimacy’,
‘appropriateness’ etc)
• S2: ‘Legality’
• S3: ‘Justification’
34
Conceptual Framework II
Step-by-Step Focus of Enquiry
Correlative Elemental Standard(s)
• Q4: Is the objective sufficiently
important to justify limiting the
rights(s)?
• Q5: Is the rights-limiting measure
rationally connected to the
objective?
• Q6: Is there a less rightsdisruptive means available
without compromising the
desired objective?
• Q7: Is the rights-limiting impact
excessive, on an overall costbenefit assessment of the rightsimpact, measure-benefits, and
objective-needs?
• S4: ‘Significance’
• S5: ‘Rationality’
• S6: ‘Necessity’
• S7: ‘Excessiveness’
35
Conceptual Framework III
Step-by-Step Focus of Enquiry
• Q8: What are the appropriate
measures for making the various
ends-means, cost-benefit, and
other proportionality-related
judgments involved?
• Q9: What leeway (if any) should
one institutional arm of
government afford another’s
rights-limiting decision?
• Q10: Who bears the onus and by
what means of demonstrating a
justified rights-limitation, and for
what purpose (eg political rightscompatibility assessments v.
judicial statutory interpretation)?
Correlative Quality-Control
Standard(s)
• S8: ‘Measurement’
• S9: ‘Deference’ (aka ‘levels
of scrutiny’, ‘weight and
latitude’, ‘margin of
appreciation’ etc)
• S10: ‘Proof’
36
Proof – VCA in Momcilovic
• ‘There may be circumstances where the
justification for interfering with a human right –
and for doing so by the particular means chosen
– is self-evident, but they are likely to be
exceptional. The government party seeking to
make good a justification case under s 7(2) will
ordinarily be expected to demonstrate, by
evidence, how the public interest is served by the
rights-infringing provision. The nature and extent
of the infringement of rights sought to be
justified will usually determine how much
evidence needs to be led, and of what kind(s).’
37
Comparative/Concentric Systemic Governance
• 21st century conditions of deliberative, participatory, and monitory
democracy:
– Institutional rights-protection v majoritarian rule
– ‘Culture of justification’ v ‘culture of authority’
– Implications for place and degree of institutional deference
• Two-way interaction between Victorian Charter and comparative
proportionality jurisprudence
• Victorian systemic politico-legal implications (and reform needs) if
different institutions are differently engaged in rights-limiting decisions,
rights-sensitive interpretation, and rights-compatible assessments:
–
–
–
–
–
Politicians introducing and voting on Bills
Parliamentary scrutiny committees
Courts interpreting laws, making declarations, and using extrinsic material
‘public authorities’ and policy-makers conforming to the Vic Charter
People knowing their human rights under Victorian law
38