Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference
45(2) Federal Law Review (2017)
16 Pages Posted: 6 Jul 2017 Last revised: 26 Jul 2017
Date Written: July 3, 2017
The Australian High Court’s tentative moves toward adopting structured proportionality as a method of constitutional review have been hampered by concerns about the separation of powers. This article argues that the manner in which a court undertakes proportionality analysis is crucial to the question whether a court is acting within the domain of judicial power. In this regard, the concept of judicial deference plays a vital but thus far undertheorised role. Deference refers not to judicial submission or surrender to the legislature, which would abdicate judicial power to a non-judicial body. Rather, it refers to a court giving weight to the judgment or opinion of government in circumstances of normative or empirical uncertainty. An increased understanding of the rationales underpinning deference in the context of constitutional review—the desirability of respecting decisions made by democratically legitimate decision-makers and the practical advantages that inhere in relying on the institutional competence and expertise of the other branches of government—would diminish concerns about the High Court straying outside the domain of judicial power. Proportionality and deference exist in a symbiotic relationship and should be addressed together by a coherent judicial theory; many of the concerns raised by the High Court about the former would diminish were it also to embrace the latter.
Keywords: Proportionality, separation of powers, judicial power, deference, Constitution, McCloy
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