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Brown v Tasmania: proportionality and the reformulation of the Lange test

journal contribution
posted on 2018-01-01, 00:00 authored by Anne CarterAnne Carter
Brown v Tasmania [1] (Brown) represents the latest word from the High Court in an ongoing debate about the place of proportionality in Australian constitutional law. While the two-part test articulated in Lange v Australian Broadcasting Corporation [2] (Lange) over 20 years ago remains the authoritative test to determine limitations on the implied freedom of political communication, the role of proportionality within this test has been a continuing source of disagreement. In Brown, a slim majority of the Court confirmed that structured proportionality analysis, along the lines developed in 2015 in McCloy v New South Wales [3] (McCloy), remains a useful method of analysis to answer the second Lange question. At the same time, however, the use of proportionality testing has continued to attract strong dissent. This comment places Brown in its broader context and examines the extent to which it clarifies the role and nature of proportionality in Australian constitutional adjudication.

History

Journal

Public law review

Volume

29

Issue

3

Pagination

11 - 16

Publisher

Thomson Reuters (Professional)

Location

Rozelle, N.S.W.

ISSN

1034-3024

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal

Copyright notice

2018, Thomson Reuters (Professional) Australia Limited