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

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.