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Summary LAWS10090 Constitutional Law Semester 2 Seminar 1-Introducing Proportionality.
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LAWS10090 Constitutional Law Semester 2 Seminar 1-Introducing Proportionality.
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Semester 2- Seminar 1-Introducing Proportionality
Analytical similarities between balancing and proportionality
Balancing and proportionality share several obvious features. Both are the second stage in a similar
two-tiered constitutional review process. The first stage of the review requires the claimant to
establish that his or her right has been infringed by a governmental action. In the second stage, the
government must show that the infringement is justified, i.e. that it has pursued a legitimate end
and has properly balanced the right and the governmental interest (in the case of balancing) or that
the infringement on the right is proportional to the importance of the governmental interest (in the
case of proportionality). In this respect, both balancing and proportionality stand in contrast to
categorical conceptions of rights that usually entail one step only in rights adjudication: identifying
an infringement of a right.
In the case of proportionality, once the government has demonstrated that it is pursuing a legitimate
end, it must meet the following three subtests: first, the means adopted to realize the government’s
goal must be suited to furthering that end (suitability). Second, the means chosen must be those
that least infringe on the individual’s right (necessity). Third, the harm to the individual resulting
from the infringement on his or her right must be proportional to the government’s gain from
furthering its goal (proportionality in the strict sense).
With balancing, there is no such division of the second stage of the review into subtests but, rather,
the comparison is made between the infringed right and the governmental interest in one step.
However, like proportionality, the balancing process is triggered when a constitutional right or
provision has been infringed; and, moreover, like proportionality, balancing entails a comparison
between the impairment of the right and the importance of the governmental interest.
Notes from the seminar:
We live in a world where protecting fundamental rights is more than crucial, which is
reflected due to the fact that the repealing of the HRA is brought in with an alternative of
the Bill of Rights and not going back to the way in which things were.
Proportionality is closely linked to fundamental rights, thus making it a corner stone
constitutional principle.
Last week tonight- John Oliver- Interview with Edward Snowden- watch it
Supreme Court has been revamping its own rights jurisdiction- they are developing a
common law regime that looks suspiciously like the HRA, in common law. Whereby, if the
HRA is repealed, then the common law has embedded itself with principles of the HRA that
would apply.
HRA as an instrument of political constitutionalism- political accountability of the
fundamental rights restrictions e.g. via the sections in the HRA like making a declaration of
compatibility etc.
What is proportionality?
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