Proportionality and Facts in Constitutional Adjudication

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

• 1. Introduction I. Proportionality and FactsA. 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 ProportionalityA. The Suitability Stage: Purpose and Rational ConnectionB. 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 ProportionalityA. 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 NecessaryD. 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

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.