Meadows v MJELR IESC 3.pdf - European Database of Asylum Law

9Keane J. then discussed the use of the test of proportionality in determiningwhether legislation was unconstitutional. The learned judge noted that no Irish authorityhad been cited for the proposition that the principle of proportionality could be invoked asa test on an administrative act. He referred to an approach being developed in Englandand stated at p.314 that:-"Whatever view may be taken as to the desirability of that approach, it canbe said with confidence that, in some cases at least, the disproportionbetween the gravity or otherwise of a breach of a condition attached to astatutory privilege and the permanent withdrawal of the privilege could be sogross as to render the revocation unreasonable within Associated ProvincialPicture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 or TheState (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642formulation. Thus, in the present case, if the amount of advertising in theapplicant's programmes had on two widely separated occasions exceeded thepermitted statutory limit by a few seconds, the permanent revocation of thelicence, with all that was entailed for the livelihood of those involved, wouldclearly be a reaction so disproportionate as to justify the court in setting itaside on the ground of manifest unreasonableness. It is unnecessary toemphasise how remote that example is from what admittedly occurred in thepresent case." [emphasis added]This analysis of the proportionality test and the reasonableness test highlights theunderlying similarity, with which I agree.21. Irish Courts have referred previously to the concept of proportionality as describedin Canada. Costello J. stated in Heaney v. Ireland [1994] 3 I.R. 593:-"The means chosen must pass a proportionality test. They must (a) berationally connected to the objective and not be arbitrary, unfair or based onirrational considerations; (b) impair the right as little as possible; and (c) besuch that their effects on rights are proportional to the objective: see Chaulkv. R. [1990] 3 SCR 1303, at pages 1335 and 1336."Costello J. went on to consider whether the restrictions imposed in that case wereproportional to the object sought to be achieved. I would adopt an approach to theproportionality test similar to that of Costello J..22. The nature of the proportionality test is that, as described above, it must berationally connected to the objective; not arbitrary, unfair, or irrational. The inherent