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  • Print publication year: 2019
  • Online publication date: June 2019

7 - Proportionality in Australian Public Law

from Part II


Andrew Harding, in his excursus on ‘legal transplantation’, observed: ‘[W]e do live in a world of legal connectivity in which we share common problems which can only be addressed by a limited range of solutions which are unlikely not to have been tried before’. This prescient remark is apt in the context of the growing importance of the proportionality concept in the Australian public law arena. The proportionality concept attained particular prominence when the High Court of Australia found a freedom of political communication impliedly embedded in the Constitution. It was inevitable that with the establishment of such an implied fundamental constitutional guarantee, the High Court had to craft a principle to enable the saving or invalidation of legislation claimed to be in violation of the implied freedom.