Proportionality in Australian constitutional law: towards transnationalism

Courts around the world are increasingly adopting tests of proportionality to assess limitations on constitutional rights. This essay considers the recent adoption of a proportionality test by the High Court of Australia in the case of McCloy v New South Wales. In particular, it assesses the extent to which this development can be seen as part of a growing globalisation of public law adjudication. In considering this question of transnational convergence the essay examines (i) the degree to which the Australian approach is analytically similar to the traditional approach to proportionality developed in Germany and, (ii) whether the Australian Court was influenced, either overtly or implicitly, by developments abroad. The essay concludes by making some observations about the potential implications of this convergence.