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Proportionality in Australian Constitutional Law (2020)
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Proportionality in Australian Constitutional Law (2020)

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Overview
isbn 9781760022426. Publishing July 2020. Hard cover.
Description
Selected as the winner of the 2019 Holt Prize by The Hon Professor William Gummow AC, The Hon Justice Alan Robertson and Ruth Higgins SC, Proportionality in Australian Constitutional Law considers the concerns that have been raised regarding the doctrine of proportionality and how these might be addressed. Since its first introduction into Australian constitutional law, there have been debates regarding its use. Recent cases, in particular, have seen a splintering on the High Court, with some judges expressing support for proportionality as a useful tool in certain contexts, and others expressing deep reservations about it. Against this background, Chordia proposes a theoretical framework for proportionality, and uses it to explore a critical question: when, if at all, is proportionality an appropriate analytical tool in Australian constitutional adjudication? CONTENTS CHAPTER 1. INTRODUCTION I. PROPORTIONALITY IN GLOBAL CONSTITUTIONAL LAW II. PROPORTIONALITY IN AUSTRALIAN CONSTITUTIONAL LAW CHAPTER 2. PROPORTIONALITY AS A CONCEPT I. PROPORTIONALITY’S CLASSICAL FOUNDATIONS II. PROPORTIONALITY IN GERMAN PUBLIC LAW III. PROPORTIONALITY IN GLOBAL CONSTITUTIONAL LAW CHAPTER 3. STRUCTURED PROPORTIONALITY AS AN ANALYTICAL TOOL I.THE BASIC LAW II. POST-WAR JURISPRUDENCE III. CONSTITUTIONAL ASSUMPTIONS GIVING RISE TO BALANCING IV. BALANCING AND STRUCTURED PROPORTIONALITY V. INCOMMENSURABILITY CHAPTER 4. STRUCTURED PROPORTIONALITY AND JUDICIAL RESTRAINT I. JUDICIAL RESTRAINT AND THE ORIGINS OF STRUCTURED PROPORTIONALITY II. VARIABLE INTENSITIES OF REVIEW CHAPTER 5. ALTERNATIVES TO STRUCTURED PROPORTIONALITY I. THE FIRST AMENDMENT AND THE BALANCING PROBLEM II. FORMALISM III. AD HOC BALANCING IV. TIERED REVIEW BASED ON CATEGORISATION CHAPTER 6. PROPORTIONALITY IN THE CHARACTERISATION OF LAWS I. THE ‘PURPOSIVE’ POWERS II. ‘PROPORTIONALITY’ AS A CONSTRAINT III. VARIOUS USES OF ‘PROPORTIONALITY’ IN CHARACTERISATION IV. EXPLAINING PROPORTIONALITY IN CHARACTERISATION CHAPTER 7. PROPORTIONALITY AND THE FREEDOM OF INTERSTATE TRADE AND COMMERCE I. THEORIES OF SECTION 92 BEFORE COLE v WHITFIELD II. COLE v WHITFIELD AND BEYOND III. COMPETING MODERN APPROACHES TO SECTION 92 CHAPTER 8. PROPORTIONALITY AND THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION I. EARLY IMPLIED FREEDOM CASES II. MODERN APPROACHES III. ADDRESSING CRITICISMS OF STRUCTURED PROPORTIONALITY IV. WHEN IS STRUCTURED PROPORTIONALITY NOT APPROPRIATE? CHAPTER 9. THE FORMS OF ‘PROPORTIONALITY’ I. MEANS ENDS ANALYSIS II. AD HOC BALANCING III. ‘SMOKING OUT’ A LAW’S PURPOSE IV. REASONABLY APPROPRIATE AND ADAPTED V. STRUCTURED PROPORTIONALITY
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