“Anne Carter, Proportionality and Facts in Constitutional Adjudication“
Cora Chan
Hong Kong Law Journal, Vol. 54, Part 3 of 2024, pp.709 – 715
Introduction: In Proportionality and Facts in Constitutional Adjudication, Anne Carter examines how and why facts matter in the globally embraced multi-stage proportionality analysis that assesses whether a rights limitation pursues a legitimate aim and is rationally connected to the aim (“the suitability stage”), whether it is no more than necessary for achieving the aim (“the necessity stage”), and whether the harm to the right and benefit achieved by the limitation are fairly balanced (“the balancing stage”). Chapter 2, the first substantive chapter of the book, explains what questions of fact each stage of the proportionality test hinges on and how they relate to one another. Chapter 3 then goes on to categorise questions of fact, distinguishing the different kinds of factual issues that arise at the various stages. Next, Chapter 4 examines how the courts in Canada, Germany and South Africa treat questions of fact in constitutional adjudication, including whether they recognise such questions and how they find facts. Chapters 5 and 6 focus on Australian law. Chapter 5 examines the place of proportionality in Australian constitutional law, while Chapter 6 looks at how the Australian courts have treated questions of fact in proportionality analysis. The final substantive chapter, Chapter 7, fleshes out the procedural implications of taking facts seriously in proportionality analysis, highlighting unresolved questions in Australian law pertaining to the standard and burden of proof, the taking of judicial notice, and judicial deference. As well as suggesting directions for development, the chapter also examines the implications of facts changing over time for the issue of precedent.