Challenges for State Parties Engaged in Proportionality Litigation - Proportionality and Facts in Constitutional Adjudication book forum

Mike Wait SC provides the second post in our book forum on Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication. To see all posts, please click here.

Mike Wait SC

5.12.2022

Dr Anne Carter’s new book, Proportionality and Facts in Constitutional Adjudication, makes a substantial and timely contribution to our understanding of a range of issues emerging in the burgeoning field of proportionality litigation. The focus of the book is on sources of evidence, burdens of proof and aspects of procedure. However, the book’s real strength is that it locates what are ultimately practical litigious issues within a sophisticated account of the evolution of the implied freedom of political communication in Australia and an appreciation of comparative approaches drawn from jurisdictions which have long wrestled with these issues. 

The book comes at a time of relative stability for proportionality testing in Australia. Since 2015, a majority of the High Court have endorsed structured proportionality testing. Yet it is not possible to glean from that structure the answers to the myriad of ‘coal-face’ issues that confront litigants and courts in the application of the test. Dr Carter’s book begins an important discussion about how we might grapple with these issues.

State parties are almost invariably respondents to proportionality litigation. Dr Carter’s book is therefore a particularly important resource for government lawyers. Three topics emerge from the book’s themes that are, to my mind, of particular currency to state parties.

The nature of the burden on state parties to justify incursions on the implied freedom

First, as Dr Carter explains, in the relatively recent decision of Unions NSW v NSW (2019) 264 CLR 595 (Unions [No 2]), the High Court held that, ‘Parliament does not generally need to provide evidence to prove the basis for legislation which it enacts. However, its position in respect of legislation which burdens the implied freedom is otherwise’ ([45] (Kiefel CJ, Bell and Keane JJ), see also Gordon J at [191]). It was New South Wales’s failure to adduce evidence capable of justifying the cap on third-party campaigners’ electoral expenditure which resulted in invalidity.

It must be accepted, therefore, that where a plaintiff can prove that an impugned measure burdens free political communication, then the burden to justify that incursion is borne by the state party seeking to defend the measure. What remains unclear, however, is the extent to which the rules that govern the process of fact finding in ordinary adversarial litigation may be modified in meeting that burden. For guidance on how the Australian position might evolve, the author looks to comparative experiences in jurisdictions with more developed proportionality jurisprudence.

In Canada, which Dr Carter recognises as the jurisdiction with the most explicit and developed appreciation of the role of fact finding in proportionality litigation, the persuasive burden formally shifts onto the defender of the law to justify. This requirement is sourced in the text of the Canadian Charter itself, which provides that rights and freedoms are guaranteed ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Importantly, however, the Canadian Supreme Court has recognised some important qualifications that ameliorate the strictness of the shift in burden.

For example, in some instances the Court is content to rely, ‘in the absence of determinative scientific evidence, [on] logic, reason and some social science evidence’ to undertake suitability analysis (Attorney-General of Canada v Harper [2004] 1 SCR 827, [78] (Bastarache J)). A flexible approach is also adopted with respect to taking judicial notice of legislative facts, particularly where the fact is not determinative of the ‘dispositive issue’ (R v Spence [2005] 3 SCR 458, [61] (Binnie J)). And the Court may, where it is warranted, defer to fact-finding by the legislature (Harper, [88] (Bastarache J); discussed by Carter, pp 82–87). The Court has acknowledged that to demand definitive social science evidence could ‘have the effect of virtually paralyzing the operation of government in the socio-economic sphere’ (RJR-MacDonald v Canada [1995] 3 SCR 199, [67] (La Forest J)). Thus, although a Canadian defender must persuade the Court that a law is justified, that burden does not operate as it would in ordinary adversarial proceedings.

Elsewhere, courts have adopted a very different approach to burden allocation. By way of recent example, since the publication of Dr Carter’s book, the Supreme Court of Ireland has had occasion to consider, and reject, the burden-shifting approach. In O'Doherty v The Minister for Health [2022] IESC 32, the Court rejected the Canadian approach for several reasons, including that: there is no similar textual foothold in the Irish Constitution to support an implication that the burden shifts at justification (at [58]); the role of Irish Courts does not extend to treating certain matters as ‘social’ or ‘legislative’ facts because it might entail the courts straying into legislative decision-making (at [62]); and concern for the maintenance of the separation of powers if Parliament were required to obtain evidence about existing states of affairs before enacting legislation (at [63]). Central to the Court’s conclusion in O’Doherty was retention of the presumption of constitutionality which would have been undermined if the state party bore a burden to justify (at [64]-[65]). 

In Australia, some tension may be thought to emerge from the shift in burden identified in Unions [No 2] and recognition that notions of ‘onus’ and ‘burden’ are not particularly useful in the realm of constitutional fact-finding (see, for example, Clubb v Edwards (2019) 267 CLR 171, (Clubb) [152] (Gageler J), [347]-[348] (Gordon J)). The concept of ‘practical burden’ may go some way to alleviating that tension (see, for example, Maloney v The Queen (2013) 252 CLR 168, [355], Clubb [153]). To approach the question of burden in this manner would avoid a formal shift to a defending state party (which sits awkwardly with our adversarial traditions), whilst acknowledging that in proportionality litigation it will, in most cases, fall as a practical matter to the state party to put materials before the court that can justify an impugned measure. Understanding the shift in burden as a practical, rather than a formal, feature of proportionality litigation, may allow for greater flexibility and, as has proven necessary in other jurisdictions, may better accommodate concerns relating to inter-institutional competence.

The burden on state parties during necessity testing

The second topic of particular relevance to state parties that emerges concerns the shift of burden, whether formal or practical, in the context of necessity testing. As Dr Carter explains, the centrality of facts and notions of burdens of proof arise most sharply during necessity testing, which involves analysing whether an obvious and compelling, equally practicable and available alternative exists which would impose a lesser burden on the freedom. The analysis requires inquiries based on predictive, non-empirical evidence about counter-factuals. As Dr Carter observes, that evidence may be difficult to establish and not readily available, yet it will also often be highly contested given the centrality of necessity testing within structured proportionality (p 162).

It may be accepted that, at least as a practical matter, it will frequently be a state party to litigation that is better positioned to place before the court facts relevant to necessity testing (Aharon Barak, Proportionality, pp 447-448). State parties tend to have greater capacity to weigh the merits and model the consequences of pursuing competing policies. Yet, equally, there must be limits to the expectations of state parties in this context. Most obviously, as has been recognised, it would impose an impossibly high bar to require a state party to identify and then negate all conceivable alternatives with detailed examination of the properties of each of them and evidence as to their possible effects (Brown v Tasmania (2017) 261 CLR 328, [288] (Nettle J)). Generally, it might be thought that a state party ought to be required only to counter those alternatives identified by a plaintiff’s pleading (Barak, p 449). Further, the notion of ‘obvious and compelling’ alternatives may provide an important filter to narrow the scope of the burden borne by state parties in this context (Unions [No. 2], [117] (Nettle J)).

Since the publication of Dr Carter’s book, the High Court has delivered judgment in Farm Transparency International v New South Wales [2022] HCA 23. In that case, the plaintiffs pointed to equivalent schemes in other jurisdictions to argue that the impugned law was unnecessary. Thus, there were concrete alternatives for the Court to compare. However, the Court approached the question of what may constitute an alternative, capable of meaningful comparison with the NSW Surveillance Devices Act 2007, pragmatically and in a manner that avoided straying into determining the merits of parliamentary choices (as helpfully discussed by Anthony Gray for this blog). That case demonstrates the salience of Dr Carter’s observations that the theory behind structured proportionality is not always easily translated to a judicial inquiry in the realm of counterfactuals and predictions (p 143).

Factual conclusions and issues of institutional competence

Third, Dr Carter’s book explores the drawing of factual conclusions and issues of institutional competence that arise in proportionality testing. Whilst some fact finding in this context proceeds in an orthodox way, on other occasions proportionality testing will depend upon the finding of ‘“massively complex social facts” for which the social sciences cannot provide “accurate and verifiable” answers ... [T]he types of facts involved in applying proportionality reasoning … will often be general in nature and involve broader claims about society or predictive judgements’ (p 37). Dr Carter notes that the resourcing and expertise of courts, and their procedures, bear on the capacity of courts to make findings of these kinds (p 47), and that these limitations are exacerbated in an adversarial system functioning within a separation of powers tradition (p 81). The problem emerges perhaps most starkly in assessing whether a measure is adequate in its balance; a question which has been said to involve the weighing of incommensurables.

Dr Carter recognises that one means by which institutional roles might be respected is for the courts to avoid drawing their own conclusions about adequacy, but instead to probe the justification process engaged in by government parties (pp 38, 164). Drawing upon the work of, amongst others, Professor Aileen Kavanagh, Dr Carter notes that proportionality analysis may take the form of a ‘process review’ that takes account of how the legislature arrived at its findings; ‘the nature of the evidence before the legislature, and whether the legislature relied on consultations, investigations or studies’ (p 85). This theme is developed further in Dr Carter’s Sydney Law Review article with Professor Gabrielle Appleby, ‘Parliaments, Proportionality and Facts’ (2021). Conceptualising proportionality review in this way respects parliamentary privilege, by analysing the fact that the legislature has concluded that a measure is justified following a deliberative process, rather than the court sitting in judgment of the merits of an assessment arrived at by the Parliament. It is arguable that this kind of supervisory function, discussed by Dr Carter (at p 110), is concordant with the search by the Court for an ‘outer limit’ (Brown, [290] (Nettle J)), ‘manifest irrationality’ (Clubb, [66] (Kiefel CJ, Bell and Keane JJ)) or ‘gross imbalance’ (Comcare v Banerji (2019) 267 CLR 373, [205] (Edelman J)). As Chief Justice Kiefel and Justices Bell and Keane acknowledged in Clubb ([66]): ‘The issue for the courts is not to determine the correct balance of the law; that is a matter for the legislature’.

Conclusion

Dr Carter astutely observes the paradox which has emerged in Australian implied freedom jurisprudence: the adoption of more prescriptive tools of analysis has not been accompanied by increased acknowledgment of the role of facts or more transparent reasoning about how facts are used in resolving proportionality litigation. Many questions remain. Whilst there are few definitive answers, Dr Carter’s book is an invaluable tool for constitutional litigators searching for clarity in the application of Australian proportionality testing. 

 Author’s note: I would like to acknowledge the substantial assistance of Ms Joanne Easson, Solicitor-General’s Chambers (SA), in preparing this note. 

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Mike Wait SC is the Solicitor-General for South Australia.

Suggested citation: Mike Wait, ‘Challenges for State Parties Engaged in Proportionality Litigation - Proportionality and Facts in Constitutional Adjudication book forum’ on AUSPUBLAW (5 December 2022) <https://auspublaw.org/blog/2022/12/challenges-for-state-parties-engaged-in-proportionality-litigation-proportionality-and-facts-in-constitutional-adjudication-book-forum/>