Author Interview: Proportionality and Facts in Constitutional Adjudication

Anne Carter tells us about her new book, ‘Proportionality and Facts in Constitutional Adjudication’.

Tell us a little bit about the book

This book seeks to understand 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.

What inspired you to take up this project?

This book grew out of my PhD research, which I completed at Melbourne Law School in 2018. The topic was inspired by the intersection of two main interests: facts and public law, and how these two areas relate to each other.

I’ve always been fascinated by the idea of ‘facts’ (ie, what exactly is a fact and how can it be established?). This is an interest which I first developed during my undergraduate studies in history, and which then came to the fore when I studied evidence law at the University of Adelaide (many years ago now!). I could see so many parallels between what historians and lawyers were doing, albeit in very different contexts.

My interest in public law – and proportionality in particular – largely grew out of my experience in practice, particularly my time spent as a government lawyer. One of the first files that landed on my desk as a lawyer was about street preachers and the implied freedom of political communication. It struck me that there was a lot of uncertainty in the Australian context about what exactly proportionality was, and how (if at all) it could be used in Australia. This was particularly stark given I’d recently returned from the UK where the courts had for some time been applying a structured form of proportionality.

So, it was really the confluence of these two things – my longstanding fascination with facts and my experiences in practice – that led to my PhD research and then this book.

Whose work was influential on you throughout the project?

There is obviously a vast literature on proportionality and so one of the challenges was navigating all of this. Not many people have specifically addressed the question of facts in proportionality, but the existing literature was crucial in terms of understanding the conceptual underpinnings of proportionality, as well as its history and use in different contexts. Aharon Barak’s book on proportionality, which came out a few years before I commenced my PhD, provided a very useful foundation. In the Australian setting Adrienne Stone’s work on the implied freedom was very influential, particularly in terms of the types of evaluative judgments the court has to undertake. In terms of facts and proportionality, work by scholars such as Julian Rivers and Cora Chan helped to shape my thinking about how to characterise the different questions that arise at the various stages of proportionality testing.

What challenges did you face in writing the book?

The main challenge was how to keep up with the evolving jurisprudence on proportionality in the Australian context. When I began my doctoral studies the High Court hadn’t yet embraced a structured test of proportionality, although there were (as I argue in the book) aspects of this type of reasoning already being used. Then in 2015, four of the seven justices adopted an explicit proportionality test. Given the slim majority, and also the trenchant opposition from the minority, there was considerable uncertainty about whether this test would be retained, and how it would evolve, especially with changes to the composition of the Court. So, I tried to craft my analysis by looking at underlying principles so that it would remain relevant regardless of the specific test the Court eventually settled on.

On a personal front, the story of this book is closely intertwined with the birth of my three beautiful babies. The final stages of both the PhD and the book manuscript coincided with the sleep-deprivation that comes with caring for a small person!

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

In this book I really hope to shed light on the ways in which constitutional adjudication can depend on findings of fact. Proportionality reasoning, which is now widely used across so many jurisdictions, is just one example of where this arises. The central idea behind the book is that the three stages of proportionality reasoning must necessarily rest on a series of empirical propositions about the world, even if these are not always explicitly acknowledged by judges. Although there are obviously value judgments at play too (which have tended to dominate the literature), courts cannot answer the three proportionality questions without some empirical grounding. The task of the book is to try to articulate these underpinning factual questions and to interrogate how the courts arrived at them.

What’s next?

I am co-editing a book with Joe Tomlinson (York University) entitled Facts in Public Law Adjudication, which has developed out of a workshop we hosted a couple of years ago. The motivation behind this book is that facts are often hugely important to the outcomes and impacts of public law adjudication, but there has been little sustained attention given to questions of fact. In the book we bring together leading scholars from across the common law world to address thorny questions – across a range of different contexts – that arise when courts and lawmakers engage with questions of fact.

Anne Carter is a Senior Lecturer at Deakin Law School, in Melbourne, Australia

Proportionality and Facts in Constitutional Adjudication is available from Hart Publishing. For a 20% discount enter code UG8.

Author Interviews