Proportionality in Administrative Law and Its Application to Victoria's Proposed Pandemic Legislation

Proportionality in Administrative Law and Its Application to Victoria's Proposed Pandemic Legislation

This article describes the use of proportionality in United Kingdom and Australian administrative law. There remains uncertainty regarding use of the doctrine, particularly in Australia. The article defends proportionality on the basis it reflects the rule of law. Its flexibility is an asset. Arguments against proportionality are considered weak. The use of proportionality reflects a culture of justification for the use of government power in a way that impacts an individual’s human rights, which reflects Australia’s liberal democracy. The article then considers application of proportionality principles to Victoria’s mooted pandemic laws. It finds that proportionality principles provide a more fertile ground for effective judicial review of the proposed extreme measures than Wednesbury unreasonableness.

This article was first published by Thomson Reuters in the Australian Journal of Administrative Law and should be cited as Anthony Gray, Proportionality in Administrative Law and Its Application to Victoria's Proposed Pandemic Legislation, (2022) 29 AJ Admin L 21. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at https://www.thomsonreuters.com.au/en-au/contact.html. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.