Proportionality, Facts and Public Law Adjudication

To mark the launch of Dr Anne Carter’s book Proportionality and Facts in Constitutional Adjudication the CCCS Global Public Law Seminar Series hosted a panel discussion of proportionality and facts in constitutional adjudication. The Honourable Pamela Tate KC formally launched the book, and was joined by panellists Joe Tomlinson, Niels Petersen, Cora Chan and Anne Carter to discuss the book and its contribution to debates about the role of facts in public law, questions of deference and expertise, as well as comparative perspectives on proportionality.

Structured proportionality analysis plays an increasingly central role in constitutional adjudication both in Australia and abroad. Proportionality analysis is used by courts to decide whether a law or action that limits constitutionally protected rights is nonetheless permissible. The application of structured proportionality creates new challenges for courts as judges must necessarily rely on certain empirical propositions about the world, that is on facts.

Dr Anne Carter’s book Proportionality and Facts in Constitutional Adjudication analyses how issues of fact arise at each of the three stages of structured proportionality, and how the nature and assessment of facts in constitutional adjudication differs from that in ordinary litigation. It draws on comparative experience from Australia, Germany, Canada and South Africa to show how the assessment of facts is critical to understanding proportionality.

About the panel

The Honourable Pamela Tate KC is an Adjunct Professor of Law at Monash University.  She retired as a Judge of the Court of Appeal of the Supreme Court of Victoria in 2021, having been appointed in 2010.  She was the Solicitor-General of Victoria from 2003 to 2010 and while Solicitor-General she was appointed Special Counsel to the Human Rights Consultation Committee that recommended the enactment in Victoria of the Charter of Human Rights and Responsibilities.

Niels Petersen is Professor of Public Law, International Law, EU Law, and Empirical Legal Studies at the University of M√ľnster. His main areas of research are international law, comparative constitutional law and constitutional theory. His monograph Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa was published by Cambridge University Press in 2017.

Joe Tomlinson is Professor of Public Law at the University of York. He is also a member of the Academic Panel at Blackstone Chambers, an Associate Fellow of the Public Law Project, and Co-Chair of the Academic Panel of the Administrative Justice Council. His work focuses broadly on the law of public administration—administrative decision-making about people’s rights and entitlements, how those decisions can be challenged, and how contemporary administrative systems are perceived and experienced in everyday life.

Cora Chan is Associate Professor at the Faculty of Law, University of Hong Kong. She researches constitutional theory, human rights, and public law. Her works on judicial deference and proportionality have been the subject of a number of awards, including the Society of Legal Scholars Best Paper Prize. In 2021, she was awarded the inaugural Rosie Young 90 Medal for Outstanding Young Woman Scholar.

Anne Carter is a Senior Lecturer at Deakin Law School. She completed her PhD in 2018 at the University of Melbourne. Prior to becoming an academic Anne worked as a practising lawyer, specialising in constitutional law and administrative law, as an Associate in the Supreme Court of South Australia and the Federal Court of Australia, and as the Researcher to the Solicitor-General for Victoria. During her PhD studies she was a visiting fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany.

View the webinar recording