JSI Seminar: The German Approach to Proportionality: A Model for Australia?

12 October 2017


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Speaker: Professor Niels Petersen, University of Münster

The proportionality test is an increasingly popular tool of fundamental rights analysis. After it has been developed by the German Federal Constitutional Court in the 1950s, it has been spread to different jurisdictions around the world. In Australia, the High Court recently introduced the proportionality test in McCloy v. New South Wales. However, proportionality is often criticized in the legal theory debate as an inadequate or even "irrational" legal standard because it requires the comparison of incommensurable values.

Professor Petersen's presentation has a two-fold aim. First, it addresses the theoretical critique of proportionality and shows that, while the gist of the critique is justified, this does not lead to the inadequacy of proportionality as a legal standard. Second, it observes how the German Federal Constitutional Court uses the proportionality test in practice and analyzes whether this practice could inform the debate on proportionality in Australian constitutional law.

About the Speaker

Niels Petersen is Professor of Public Law, International Law, and EU Law at the University of Münster since February 2015. He holds a PhD in law from Goethe University in Frankfurt and an M.A. in Quantitative Methods in the Social Sciences from Columbia University. From 2004 to 2006, he was a Research Fellow at the Max Planck Institute for Research on Collective Goods in Heidelberg, and from 2007-2015, he worked as a Senior Research Fellow at the Max Planck Institute for Research on Collective Goods in Bonn. Furthermore, he visited at the New York University School of Law as a Visiting Doctoral Researcher (2006/07) and as a Hauser Research Scholar (2012/13). His research focuses on comparative constitutional law, human rights law, the sources of public international law as well as the economic analysis of law. His most important publication is a recent monograph on Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany, and South Africa (Cambridge University Press, 2017).

CPD Points: 2

Time: 6-8pm

Location: Common Room, Level 4, New Law Building (F10), Eastern Avenue, Camperdown, University of Sydney

Cost: Complimentary, however registration is essential.

Contact: Professional Learning & Community Engagement

Phone: 02 9351 0429

Email: 020d04792310335a131526022a2f07062c7700343401281d