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Proportionality in Australian constitutional law: towards transnationalism

journal contribution
posted on 2016-01-01, 00:00 authored by Anne CarterAnne Carter
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.

History

Journal

Heidelberg journal of international law

Volume

76

Pagination

951 - 966

Publisher

Max Planck Institute for Comparative Public Law and International Law

Location

München, Germany

ISSN

0044-2348

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal

Copyright notice

2016, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht