Suchergebnisse

Preliminary Material -- Introduction -- pa in eu Law -- pa in echr Law -- Conclusions to Part 1 -- uk Courts and pa -- Norwegian Courts and pa -- Conclusions to Part 2 -- pa: Between Rationality and Reasonableness -- pa: Between Substance and Procedure -- pa and the Role of Courts -- pa as a (General) Principle of Law -- pa and the Rule of Law -- Conclusions to Part 3 -- Conclusions with Resolutions -- Bibliography -- Index.

Proportionality has been used as an analytical method in the constitutional jurisprudence of courts around the world, including in Australia. The method has not, however, been free from controversy. Since its first introduction into Australian constitutional law, there have been debates regarding the appropriateness of proportionality testing in this context.To date, these debates have been lacking in one important respect: they have not been sufficiently grounded in theory. In times when the global literature on the subject was relatively nascent and applications in comparative constitutional contexts sparse, the under-theorisation of Australian proportionality was understandable. This is no longer the case. The burgeoning international literature and jurisprudence in this field has in recent years generated a rich body of judicial and academic thought from which to elicit a properly theorised consideration of proportionality. Drawing on these resources, this thesis proposes a theoretical framework for proportionality. It uses this framework to explore a key question in the Australian context: when is proportionality an appropriate analytical tool in constitutional jurisprudence? In examining this question, the thesis considers the primary concerns regarding the appropriateness of proportionality in Australian constitutional law and how these might be addressed. It also makes principled suggestions for the development of Australian doctrine.

AbstractThe proportionality principle plays a key role in constitutional review of public acts. Its use legitimises the constitutional claims of EU law in the context of a multi-level polity system. The application of proportionality in the EU differs based on whether legal acts of the EU or of its Member States are concerned. In the former case, a manifestly disproportionate test is usually applied, while in the latter case, a least restrictive means test (LRM) is normally used. Both are conditioned by the degree of integration achieved. In future, the use of the principle may involve increasing attention being paid to individual rights.

Abstract
The doctrine of proportionality has received sustained attention from comparative constitutional scholars. Yet it is an area where courts, and scholars, have made limited use of empirical or inter-disciplinary approaches to constitutional comparison. The article calls for a change in this practice as part of a broader call for greater dialogue between scholars and practitioners of conceptual and more empirical forms of constitutional comparison.