Proportionality and Facts in Constitutional Adjudication book forum - Author’s reply
Dr Anne Carter replies to reflections from Professor Rosalind Dixon, Mike Wait SC and Samuel Murray on her book Proportionality and Facts in Constitutional Adjudication. To see all posts, please click here.
Anne Carter
5.12.2022
I am honoured and humbled to have such an eminent panel engage with my book, Proportionality and Facts in Constitutional Adjudication. As I will explain below, the motivations for this book stemmed in part from my time as a practising government lawyer, so I’m particularly delighted that this book forum includes two practitioners of public law, along with a leading comparative constitutional law scholar. Each panellist has engaged thoughtfully with the substance of the book and has raised a number of distinct issues. In this post I will explain the motivations behind the book and its main themes and findings, as well as responding to the helpful contributions from the three panellists. In doing so I will sketch some future directions about the ongoing conversation about facts in proportionality reasoning (and public law more generally).
Facts in Constitutional Adjudication
I have had a longstanding interest in the role of facts in public law. My interest in proportionality was piqued when, as a practising government lawyer, the first case that landed on my desk was Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1. At this stage a structured three-part test of proportionality had not yet been adopted in Australia, but in the various judgments of the High Court we can see the beginnings of the various stages of suitability, necessity and balancing. At the time of this case there was considerable uncertainty about what exactly proportionality was and whether it was an appropriate test in the Australian constitutional context. Of course this came to a head a few years later when four justices in McCloy v New South Wales (2015) 257 CLR 178 introduced a structured three-part test.
These developments in McCloy prompted much debate about whether such a test – which originated in Europe but is now used extensively around the globe – should be adopted in Australia given the lack of an express framework of rights and the strict separation of judicial and legislative power. Shipra Chordia, for example, has addressed this question in her recent work on the topic (which was the subject of a previous book forum). My book takes a different tack: it is not concerned directly with whether proportionality ought to be adopted, but rather with the nature of proportionality reasoning itself. In particular, it is concerned with the place of facts and factual assessments within the various stages of proportionality testing.
While facts have long been acknowledged as relevant to the application of the free trade guarantee in s 92 of the Australian Constitution, in cases concerning the implied freedom of political communication there has often been less explicit engagement with questions of fact. In addition, much of the existing literature on proportionality has focused on the propriety of judicial balancing and, as Professor Ros Dixon notes in her contribution, there has been limited scholarly attention given to the law-fact nexus in constitutional adjudication. My contention is that proportionality is necessarily a fact-sensitive test, and that courts cannot apply proportionality without some empirical grounding. As I show in the book, however, these empirical dimensions have often been hidden in the High Court’s jurisprudence.
One of the main tasks of the book, therefore, is to analyse more explicitly where facts arise in each of the three stages of suitability, necessity and ‘adequate balance’. In the book I examine these stages of proportionality both conceptually and in terms of their application in practice, drawing on Australian and comparative jurisprudence. In Chapter 2 I examine the nature of the facts that emerge in proportionality reasoning, drawing upon Kenneth Culp Davis’s well-known distinction between legislative and adjudicative facts. I argue that despite the often predictive, counterfactual and evaluative nature of the facts that arise, there is still utility in thinking of these as a species of fact. In Chapters 5 and 6 I chart the adoption of different forms of proportionality-style reasoning that have been used by the High Court in different contexts, and I analyse the role of facts in each of these tests. This analysis reveals that there is no simple correlation between proportionality and facts. Perhaps surprisingly, the adoption of a structured test of proportionality has not necessarily been accompanied by a greater willingness to engage with facts.
Ultimately, my hope is that the book will prompt a greater engagement – both on and off the Court – with questions of fact.
The Prior Question of Legitimacy
Samuel Murray’s contribution draws attention to the role of facts in legitimacy testing. As he rightly notes, my focus in the book was on the three questions of suitability, necessity and ‘adequate balance’. The prior question of the legitimacy of the law’s purpose (which is some jurisdictions is understood as a distinct sub-test) is something I discuss only briefly in the book. I note that the question of legitimacy will ultimately involve a normative judgment, but that the identification of the relevant purpose may raise empirical questions (especially where the purpose is unclear or contested). Murray questions this assumption, suggesting that facts will – at times – also be relevant to the question of whether an end is legitimate. He illustrates this by reference to different understandings of the content of representative and responsible government.
This analysis helpfully invites us to consider factual dimensions that might otherwise be hidden within the legitimacy stage of analysis. In my view, a court’s conclusion about whether a particular end is legitimate is best understood as a normative claim, but I agree that this judgment may at times be informed by differing empirical premises. In other words, the normative judgments on questions of legitimacy cannot be made in a vacuum.
Clarifying the Burden of Proof
Both Dixon and Mike Wait SC address the issue of how the burden of proof applies in the context of proportionality reasoning, drawing on my analysis in the book of Unions NSW v NSW (2019) 264 CLR 595. As they note, in this case the High Court clarified that the party seeking to uphold the constitutionality of a law needs to satisfy the Court that a burden on free political communication is justified. This approach, as Dixon observes, is consistent with global norms regarding two-stage constitutional rights reasoning. What is less clear is how the rules that govern fact-finding in ordinary adversarial litigation might be adapted in order to discharge this burden. In the book I examine the modifications that have been adopted comparatively, most notably looking at the reformulation of the doctrine of judicial notice in Canada. Wait helpfully adds to this analysis through the discussion of a recent Irish case (where a different approach is adopted), and by suggesting that the concept of a ‘practical burden’ might be more appropriate in the Australian setting.
Expanding the Evidential Base
Another issue raised in the contributions of both Dixon and Wait is that of the evidential foundation necessary for courts to undertake robust and empirically grounded assessments of proportionality. As I discuss in the book, in many cases the relevant facts will fall outside the confines of judicial notice and so will require additional evidential material. It is here that the Court’s existing procedures are particularly inadequate, and the Court is often limited by the facts agreed to by the parties.
Wait, drawing on his extensive experience as a government lawyer, makes the point that proportionality challenges will invariably involve state parties and that state parties are often better placed both to adduce the relevant factual material and to ‘weigh the merits and model the consequences of pursuing competing policies’. While it is true that the state parties will often have more access to the relevant factual materials, as Professor Gabrielle Appleby has previously observed, submissions from government will tend to come from a relatively narrow perspective. If a wider range of interests are to be heard there is a need for modifications to existing court procedures, such as the expansion of amicus briefs. In addition, recognising the government’s experience in weighing competing policy objectives prompts consideration of how courts should evaluate the processes and deliberations of the other branches of government. As Wait notes, this is an issue discussed in the book and which I have also further developed in a recent piece with Appleby in the Sydney Law Review.
Dixon’s contribution also addresses the need for an expanded evidential base, but she focuses on the contribution of the social sciences. As she notes, this is not something addressed at any length in the book. As I’ve explained above, the book’s primary focus is on the prior question of how facts are relevant. Once this groundwork is established, this opens up a host of further questions. Some of these questions of procedure are addressed in Chapter 7, but many await further examination. This includes the potential for the Court to be informed by social science evidence. As Dixon explains, such evidence can speak to the impact and operation of regulatory measures, and also the plausibility of alternatives (which is required when considering questions of necessity). As I indicate in the book’s conclusion, the question of how expert evidence – including social science evidence – can be brought before the Court in constitutional adjudication awaits further clarification. There is also, as Dixon suggests, a need for greater training in relation to these forms of expertise.
My hope in writing this book was that it would be the catalyst for further conversations about the role of facts in public law. I am delighted that – through this panel – these discussions have already begun. I look forward to seeing how the jurisprudence in this space will continue to evolve.
Dr Anne Carter is a Senior Lecturer at Deakin Law School.
Suggested citation: Anne Carter, ‘Proportionality and Facts in Constitutional Adjudication book forum - Author’s reply’ on AUSPUBLAW (5 December 2022) <https://auspublaw.org/blog/2022/12/proportionality-and-facts-in-constitutional-adjudication-book-forum-authors-reply>