The Art and (Social) Science of Proportionality and Facts in Constitutional Adjudication - Proportionality and Facts in Constitutional Adjudication book forum
Professor Rosalind Dixon provides the first post in our book forum on Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication. To see all posts, please click here.
Rosalind Dixon
5.12.2022
Proportionality analysis is ultimately deeply fact dependent. It depends on an assessment of the suitability of laws for achieving their purposes – a question of basic logic and social fact. It further requires an assessment of whether a law is necessary, or could achieve its objective through some hypothetical, less restrictive alternative, and is 'adequate in the balance', namely achieves greater benefits than costs, from a constitutional perspective.
Anne Carter notes in her important new book, Proportionality and Facts in Constitutional Adjudication, these are all arguably 'legislative' rather than 'adjudicative' facts, but also distinct in nature and scope (at 45). As the High Court has indicated, each calls for different sources of evidence, and procedures and rules governing their use (see, for instance, Thomas v Mowbray (2007) 233 CLR 307, 512 [614], 518–19 [632] (Heydon J); Maloney v The Queen (2013) 252 CLR 168, 298–9 [351] (Gageler J)).
Yet to date, the constitutional law-fact nexus has attracted only limited attention in Australia, including from myself, Carter, Gabrielle Appleby and Brendan Lim. Carter’s book therefore makes an important contribution to the literature on this question. It provides a nuanced survey of the procedural challenges and complexities facing the High Court in this context, and offers tentative, well-reasoned potential solutions, informed by comparative experience.
Judicial notice and its limits
Take, for instance, the doctrine of judicial notice, and its limits. The traditional position of the High Court of Australia has been that the Court is only entitled to take judicial notice of facts that are 'not reasonably open to question' (Aytugrul v The Queen (2012) 247 CLR 170, 183 [21] (French CJ, Hayne, Crennan and Bell JJ)). But this position may be too stringent to accommodate the need for the Court to make judgments about certain legislative facts, as part of a proportionality-based analysis. Carter thus points to Canada as offering one potentially promising doctrinal reformulation of the current approach. In R v Spence, the Supreme Court of Canada endorsed a more ‘elastic’, flexible version of the doctrine, according to which the stringency of proof was adjusted according to the centrality of the fact to the relevant constitutional issue or outcome.
Carter’s justification of the relevant comparison is extremely sound (14-18). Canada has many relevant commonalities with Australia in this context, an important point for meaningful comparison. Hence, its attempts to grapple with similar doctrinal challenges carry weight in thinking how best to refine our own doctrines in this area.
Hearing matters by way of demurrer or special case
Another example is the way in which Carter deals with the Court’s hearing matters by way of demurrer or special case. Carter notes the rise of these procedures and challenges they create for generating a sufficient factual record for proportionality-based analysis (at 146). Given this, Carter implicitly suggests the need for the Court to reconsider its reluctance to determine contested issues of fact, or at least to remit such issues to the Federal Court for determination (145-7).
An example of such procedures can be seen in the recent decision of the High Court of Australia in Palmer v Western Australia. While it may be doubted whether the Court wished to reach the merits on the case, given the politically sensitive issues involved, the stated basis for its decision not to do so was the inadequacy of the factual record provided by the special case procedure. And this was even after extensive factual determinations by the Federal Court.
Carter further explores the ways in which the Court could resolve contested issues of fact, including through appropriate burdens of persuasion, or notions of institutional restraint. She usefully clarifies the position of the majority of the Court in Unions (No 2) that it is for the party seeking to defend the constitutionality of legislation to satisfy the Court that a law is proportionate and situates this understanding in broader comparative context.
What she does not say, but might, is that this approach conforms with global norms regarding two-stage constitutional rights reasoning – that is, the understanding that it is for a constitutional plaintiff to show prima facie infringement of a right, and then for the state to show that any such infringement is justified and proportionate in the circumstances. This analogy shows the complex structural issues implicit in any comparison between Australia and countries with a more rights-based constitutional framework (see e.g, Carter 14-18). But in my view the analogy still holds in ways that support the correctness of the Court’s approach in Unions (No 2).
The contribution of social science
One question Carter does not address is the issue of how social science and social scientists can contribute to the determination of constitutional facts. There is a limited tradition of inter-disciplinary scholarship in Australia, and even less tradition of engagement by practicing lawyers and judges with social science evidence. (For an important exception, see the UNSW Law Journal’s ‘Law and Economics’ issue: ‘Thematic: ‘Law and Economics'’ (2022) 45(3) University of New South Wales Law Journal). Yet social science analyses are often critical to adjudicating legislative facts in the context of the proportionality doctrine.
Questions of necessity do not simply involve considering the existence of potential alternative modes of regulation. They require assessing the plausibility of those regulations as an effective alternative to a law under challenge. This further requires examining evidence as to the impact and operation of those regulations in those jurisdictions in which they have been enacted. This should not be done through casual observation alone. As Richard Holden and I have argued, this requires engagement with sophisticated social science techniques, and specifically qualitative case-study methods and/or econometric techniques, for identifying causal patterns.
Take the challenges to prohibitions on online betting under s 92 of the Constitution. These prohibitions clearly burdened inter-state trade and commerce, and hence to be valid, had to be shown to be necessary to a non-protectionist state objective, namely: preserving sporting integrity. But in the 2008 decision in Betfair v Western Australia (2008) 234 CLR 418, the Court simply noted the possibility of regulating rather than banning online betting as a potential regulatory alternative open to the state of Western Australia. As I have previously explained, it did not attempt to make the empirical findings needed to determine whether those regulations of that kind (such as those adopted in Tasmania) were effective in achieving their objective.
Or consider the factual issues facing the Court in Palmer. The issue in Palmer was whether Western Australia’s strict border controls during COVID-19 were reasonably necessary or proportionate to a valid public health objective. They clearly infringed principles of ‘free intercourse’ across state lines, and hence fell to be justified according to a proportionality-based or at least proportionality-like standard. This also required the Court to engage in a complex process of fact-finding: about the rates of COVID infection across various Australian states, the spread or ‘reproduction rate’ of the virus at the relevant time, the capacity of hospitals to deal with the then rates of infection, and the capacity of appropriate quarantine arrangements to prevent the spread of infection. Some of this information could be gleaned from expert witnesses, and official government data. But some of it also depended on complex social science modelling.
To adequately adjudicate constitutional facts, I suggest, courts in Australia must embrace the important analytic and procedural reforms recommended by Carter – but also go further and embrace the need for greater training and openness to the admission of social science evidence.
In the United States, evidence of this kind is often presented in specific fact-focused amicus briefs, known as ‘Brandeis briefs’, which originated from the factual briefs proposed by counsel, Louis Brandeis, in Muller v. Oregon, 208 U.S. 412 (1908). But the High Court has not shown much openness to this kind of amicus submission (see Unions NSW v New South Wales (2019) 264 CLR 595, 619 [55]–[57] (Kiefel CJ, Bell and Keane JJ) where their Honours rejected the submission to this effect by this author and New Economic Policy Initiative at UNSW). But it could equally be adduced by parties, as part of a special case procedure, or appropriate form of factual hearing before the Federal Court.
Proportionality and Facts in Constitutional Adjudication lays the groundwork for these changes. And it provides much needed structure and clarity around the procedural and institutional changes necessary to underpin them. But it should be seen as only the beginning of a conversation about what it means to take the factual dimension of proportionality reasoning seriously. The next stage of that conversation must be a discussion about social scientific approaches to questions of fact and causal inference.
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Rosalind Dixon a Professor of Law & Director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney. She teaches Economic analysis of law, and is Co-Director of the UNSW New Economic Policy Initiative.
Suggested citation: Rosalind Dixon, ‘The Art and (Social) Science of Proportionality and Facts in Constitutional Adjudication - Proportionality and Facts in Constitutional Adjudication book forum’ on AUSPUBLAW (5 December 2022) <https://auspublaw.org/blog/2022/12/the-art-and-social-science-of-proportionality-and-facts-in-constitutional-adjudication-proportionality-and-facts-in-constitutional- adjudication-book-forum/>