Proportionality and Facts in Constitutional Adjudication: : Hart Studies in Constitutional Theory Anne Carter Hart Publishing

Proportionality and Facts in Constitutional Adjudication

Description

This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity, and balancing – it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation.

The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages.

The book has three broad aims:

First, it considers the role of facts within proportionality reasoning.

Second, it offers procedural insights into fact-finding in constitutional litigation.

Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.

1. Introduction
I. Proportionality and Facts
A. What is Proportionality?
B. Proportionality in Australia
C. Why Facts Matter
II. The Aim and Scope of this Book
III. Methodology and Comparative Context
A. Choice of Comparators
B. The Australian Constitutional Framework
C. The Comparative Context
IV. The Structure of the Book

2. The Fact-Dependent Nature of Proportionality
I. Proportionality: A Structured Approach
A. Legitimate Aim
B. Suitability
C. Necessity
D. Balancing
II. The Nature of Proportionality Reasoning
A. Types of Decisions Involved in Assessing Proportionality
B. Factual Elements in Proportionality
III. Conclusion: Proportionality and Facts

3. Understanding Facts
I. What are Facts?
II. Classifying Facts
A. Kenneth Culp Davis and the Distinction between Adjudicative Facts and Legislative Facts
B. 'Legislative Facts' and their Alternatives
C. Evaluating the Categories
III. Facts and Proportionality
A. The Suitability Stage: Purpose and Rational Connection
B. The Necessity Stage: Predictions and Counterfactuals
C. Balancing and Facts
IV. Conclusion

4. Proportionality and Facts in Comparative Perspective
I. Proportionality Compared
II. Recognising Facts?
A. The Relevance of Facts
B. Differentiating Facts: The Various Stages of Proportionality Analysis
III. Finding Facts?
A. Informing the Court
B. Deference to the Legislature
IV. Conclusion

5. Proportionality in Australian Constitutional Law
I. The Australian Adoption of Proportionality
II. The Development of Proportionality
A. The Development of Different Tests
B. 'Appropriate and Adapted' versus 'Proportionality'?
C. McCloy and the Advent of Structured Proportionality
III. Evaluating Proportionality
A. Balancing
B. Levels of Scrutiny
IV. Conclusion

6. The Factual Basis of Proportionality in Australia
I. Recognising Facts
II. Facts and the Framing of Constitutional Tests
A. Reasonably Capable of Being Considered Appropriate and Adapted
B. Reasonably Appropriate and Adapted
C. Reasonably Necessary
D. Structured Proportionality
III. The Correlation between Proportionality and Facts?
IV. Conclusion

7. Procedural Implications
I. The High Court's Existing Approach: Limitations and Unresolved Issues
A. High Court Procedures and their Limitations
B. Unresolved Issues
II. Recognising Facts: Implications for Procedure
A. The Suitability Stage
B. The Necessity and Balancing Stages
III. Changing Facts and the Problem of Precedent
IV. Conclusion

8. Conclusion: Why Facts Matter

Product details

Published	Jan 27 2022
Format	Ebook (PDF)
Edition	1st
Extent	272
ISBN	9781509937004
Imprint	Hart Publishing
Series	Hart Studies in Constitutional Theory
Publisher	Bloomsbury Publishing

In sum, this book should be widely read across jurisdictions. It contributes something new in proportionality, which is hardly to be understated, and rigorously captures the nature of the field in an understudied area of practice, addressing “how” questions while feeding into wider debates around proportionality in Australia and beyond.

Cambridge Law Journal
It is a fine work of constitutional theory, drawing together disparate strands of leaning in epistemology and political theory in a study of real-world problem of who decides, and how they decide, questions of whether there are good enough reasons for law … It is likely to be a standard reference for subsequent work on the important questions that the book lays out.

Public Law Review
Carter's book draws attention to and illuminates a crucial but overlooked aspect of constitutional adjudication. By revealing the issues of fact that are involved in the proportionality test and their implications for procedural and substantive questions, the book goes a long way towards facilitating the proper resolution of constitutional disputes … A must-read.

Hong Kong Law Journal
Dr Anne Carter [has] provided ... valuable contributions to the literature considering the role of structured proportionality in the Australian constitutional context.

Bar News