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Proportionality in Australian constitutional law: towards transnationalism
journal contribution
posted on 2016-01-01, 00:00 authored by Anne CarterCourts 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.
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.
