Overview

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.

Full Product Details

Author:   Anne Carter (University of Adelaide, Australia)
Publisher:   Bloomsbury Publishing PLC
Imprint:   Hart Publishing
Weight:   0.490kg
ISBN:  

9781509936984

ISBN 10:   150993698
Pages:   224
Publication Date:   27 January 2022
Audience:   College/higher education ,  Tertiary & Higher Education
Format:   Hardback
Publisher's Status:   Active
Availability:   Manufactured on demand  
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Table of Contents

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

Reviews

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

Dr Anne Carter [has] provided ... valuable contributions to the literature considering the role of structured proportionality in the Australian constitutional context. -- Bar News

Author Information

Anne Carter is Senior Lecturer at Deakin Law School, Australia.

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