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Proportionality and Facts in Constitutional Adjudication


ISBN13: 9781509936984
To be Published: January 2022
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £85.00



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 Australian High Court 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 a structured test of proportionality

These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.

Subjects:
Constitutional and Administrative Law, Other Jurisdictions , Australia
Contents:
Foreword
Acknowledgements
Table of Cases
Table of Legislation
1. Introduction
I. Proportionality and Facts
II. Aim and Scope of this Book
III. Methodology and Comparative Context
IV. Structure of the Book
2. The Fact-Dependent Nature of Proportionality
I. Proportionality: A Structured Approach
II. The Nature of Proportionality Reasoning
III. Conclusion: Proportionality and Facts
3. Understanding Facts
I. What are Facts?
II. Classifying Facts
III. Facts and Proportionality
IV. Conclusion
4. Proportionality Compared
I. Proportionality Compared
II. Recognising Facts?
III. Finding Facts?
IV. Conclusion
5. Proportionality in Australian Constitutional Law
I. The Australian Adoption of Proportionality
II. The Development of Proportionality
III. Evaluating Proportionality
IV. Conclusion
6. The Factual Basis of Proportionality in Australia
I. Recognising Facts
II. Facts and the Framing of Constitutional Tests
III. The Correlation Between Proportionality and Facts?
IV. Conclusion
7. Procedural Implications
I. The High Court's Existing Approach: Limitations and Unresolved Issues
II. Recognising Facts: Implications for Procedure
III. Changing Facts and the Problem of Precedent
IV. Conclusion
8. Conclusion: Why Facts Matter
Bibliography
Index

Series: Hart Studies in Constitutional Law

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