Functionalism in Constitutional Interpretation: Factual and Participatory Challenges: Commentary on Dixon
| Date | 01 September 2015 |
| DOI | 10.22145/flr.43.3.6 |
| Published date | 01 September 2015 |
| Subject Matter | Article |
FUNCTIONALISM IN CONSTITUTIONAL
INTERPRETATION: FACTUAL AND PARTICIPATORY
CHALLENGES: COMMENTARY ON DIXON
Gabrielle Appleby∗
I INTRODUCTION
In The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term,
Rosalind Dixon argues that a functional approach to constitutional interpretation offers
the Australian High Court a ‘promising middle path between the extremes of pure
formalism and pragmatism’. 1 A functional approach, she argues, would introduce
greater transparency and predictability into the Court’s constitutional jurisprudence.
Dixon embraces the foundational realist proposition that judges must, in some cases,
resort to evaluative judgment. According to Dixon’s thesis, this discretion should be
informed by substantive constitutional values derived from the text, history and
structure of the Constitution. This, however, doesn’t resolve the question of
unrestrained judicial choice. Constitutional provisions are capable of being interpreted
as promoting different foundational values;2 values may intersect and even conflict.
Dixon argues that judicial discretion remains constrained because such tensions can be
resolved by reference to the potential consequences of a particular interpretation and
an investigation into which outcome will best achieve the fulfillment of the
constitutional objectives. Dixon’s functional approach thus requires a much larger
factual matrix to be considered by the Court than currently occurs in most constitutional
litigation.3 Dixon encourages parties to litigation to change and orientate their practice
accordingly.
∗ Associate Professor, UNSW Law, Co-Director, The Judiciary Project, Gilbert + Tobin Centre
of Public Law. I would like to thank Adam Webster for his extremely helpful comments and
suggestions on an earlier draft. Errors and omissions remain my own.
1 Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court
Constitutional Term’ (2015) 43(3) Federal Law Review 455, 455.
2 Adrienne Stone, ‘The Limits of Constitutional Text and Structure’ (2005) 28 University of New
South Wales Law Journal 842.
3 Although note there has been identified an increased use of secondary materials and reliance
on foreign judgments since the time of the Mason Court. Russell Smyth, ‘Other Than
494
Federal Law Review
Volume 43
_____________________________________________________________________________________
In this comment, I explore the extent to which Dixon’s functional approach requires
judicial reference to ‘constitutional facts’ and explain how the Court informs itself of
these, before considering the extent to which current parties to constitutional litigation
– and particularly Commonwealth, State and Territory Attorneys-General – are already
presenting this type of factual material to the Court. Against the background of this
currently accepted practice, I conclude by outlining two changes in High Court practice
that would facilitate Dixon’s functionalist approach: the acceptance of a greater role for
amicus curiae in constitutional cases and the expansion of the current notification
regime for constitutional matters.
II THE ROLE OF FACTS IN FUNCTIONAL CONSTITUTIONALISM
Dixon’s functional approach to constitutional interpretation requires the Court to be
informed by a broad range of facts, including ‘evidence as to the practical background
to the relevant legislation, including the practice of other jurisdictions, more extensive
evidence as to the public and legislative debate that informed a particular piece of
legislation, and social science evidence as to the efficacy of alternative regulatory
regimes.’4 For instance, in cases involving the application of a proportionality test, such
as cases involving the implied freedom of political communication, a functional
approach would invite judges to consider a counter-factual analysis, informed by the
practical consequences of the government’s adoption of possible alternative regulatory
regimes to achieve their objectives. Since Dixon’s comment, in the 2015 decision of
McCloy v New South Wales,5 French CJ, Kiefel, Bell and Keane JJ moved the doctrine
more explicitly in this direction. The joint judgment reformulated the Lange test to
include, inter alia, an explicit consideration of ‘necessity’, that is, whether there was an
‘obvious and compelling alternative, reasonably practicable means of achieving the
same purpose which has a less restrictive effect on the freedom.’6
However, while members of the Court may have accepted the need to consider
whether there were reasonable alternative responses, Dixon observes that this has largely
been uninformed by facts – advanced either by submissions or evidence – on this
question. This trend continues. In McCloy, the joint judgment referred to the possible
alternatives proffered by the plaintiffs, and noted that they failed to discharge the onus of
proving how such alternatives could make a practical difference and achieve the
government’s objective within the existing legislative framework.7 Justice Gordon also
considered the practicality of proposed alternatives, largely uninformed by submissions
or evidence other than, in one instance, evidence of the practice in other countries.8
“Accepted Sources of Law”?: A Quantitative Study of Secondary Source Citations in the
High Court’ (1999) 22 University of New South Wales Law Journal 19.
4 Dixon, above n 1, 470.
5 [2015] HCA 34.
6 Ibid [2].
7 Ibid [59]–[61].
8 Ibid [330]–[331], [361]–[362], [379].
2015
Functionalism in Constitutional Interpretation
495
_____________________________________________________________________________________
Dixon anticipates that practical objections to the broader adoption of a functional
approach in constitutional cases would be either that it would ‘overtax the institutional
capacities of the High Court’ or that it would ‘require it to determine – in the absence
of appropriate evidence – questions that are essentially largely factual in nature.’
The facts required to facilitate a functionalist approach are generally known as
‘constitutional facts’, and more specifically, they are ‘the facts relevant to the
constitutional validity of enactments’. 9 The High Court often hears constitutional
matters on an agreed set of facts,10 or on an appeal record, with no ‘evidence’, as such,
tendered to the Court. In 1990, Susan Kenny observed that the High Court had not
‘developed a coherent body of practicable principles to control “constitutional fact”
ascertainment’.11 She explained that ‘Counsel thus lacked practical judicial guidance as
to appropriate fact presentation.’ 12 To adopt a principled functionalist approach,
informed by the necessary constitutional factual matrix, the Court needs to develop
such a body of principles.
While constitutional facts have, on occasion, been proven through the tendering and
testing of evidence,13 they are most often accepted through the doctrine of ‘judicial
notice’.14 The Court will take judicial notice of facts that are ‘generally known’ or
‘notorious’, 15 including through ordinary and common human experience and
knowledge, incontrovertible facts about basic scientific (or other) principles, as well as
matters derived from the simple application of reason. Constitutional facts might also
be what Callinan J referred to as ‘official facts’: ‘official published statistics,
scrupulously collected and compiled, information contained in parliamentary reports,
9 J D Heydon, ‘Constitutional Facts’, in Samuel Griffith Society Proceedings, (2011) volume 23,
ch 10, 85. Constitutional facts are generally seen as a type of legislative fact, distinct from an
adjudicative fact, adopting the distinction drawn in Kenneth Culp Davis, Administrative Law
Treatise (1958), s 15.03. See also P H Lane, ‘Facts in Constitutional Law’ (1963) 37 Australian
Law Journal 108; Bradley Selway, ‘Use of History and Other Facts in the Reasoning of the
High Court’ (2001) 20 University of Tasmania Law Review 129, 135. For consideration of similar
issues in the Canadian context, see P W Hogg, ‘Proof of Facts in Constitutional Cases’ (1976)
26 University of Toronto Law Journal 386, 397.
10 Either through the procedural mechanism of the special case: High Court Rules 2004 (Cth)
rule 27.08; or a removal under the Judiciary Act 1903 (Cth) s 40; or a demurrer decided on the
basis that the facts alleged by the plaintiff are correct: High Court Rules 2004 (Cth) rule 27.07.
11 Susan Kenny, ‘Constitutional Fact Ascertainment (With Reference to the Practice of the
Supreme Court of the United States and the High Court of...
INTERPRETATION: FACTUAL AND PARTICIPATORY
CHALLENGES: COMMENTARY ON DIXON
Gabrielle Appleby∗
I INTRODUCTION
In The Functional Constitution: Re-Reading the 2014 High Court Constitutional Term,
Rosalind Dixon argues that a functional approach to constitutional interpretation offers
the Australian High Court a ‘promising middle path between the extremes of pure
formalism and pragmatism’. 1 A functional approach, she argues, would introduce
greater transparency and predictability into the Court’s constitutional jurisprudence.
Dixon embraces the foundational realist proposition that judges must, in some cases,
resort to evaluative judgment. According to Dixon’s thesis, this discretion should be
informed by substantive constitutional values derived from the text, history and
structure of the Constitution. This, however, doesn’t resolve the question of
unrestrained judicial choice. Constitutional provisions are capable of being interpreted
as promoting different foundational values;2 values may intersect and even conflict.
Dixon argues that judicial discretion remains constrained because such tensions can be
resolved by reference to the potential consequences of a particular interpretation and
an investigation into which outcome will best achieve the fulfillment of the
constitutional objectives. Dixon’s functional approach thus requires a much larger
factual matrix to be considered by the Court than currently occurs in most constitutional
litigation.3 Dixon encourages parties to litigation to change and orientate their practice
accordingly.
∗ Associate Professor, UNSW Law, Co-Director, The Judiciary Project, Gilbert + Tobin Centre
of Public Law. I would like to thank Adam Webster for his extremely helpful comments and
suggestions on an earlier draft. Errors and omissions remain my own.
1 Rosalind Dixon, ‘The Functional Constitution: Re-Reading the 2014 High Court
Constitutional Term’ (2015) 43(3) Federal Law Review 455, 455.
2 Adrienne Stone, ‘The Limits of Constitutional Text and Structure’ (2005) 28 University of New
South Wales Law Journal 842.
3 Although note there has been identified an increased use of secondary materials and reliance
on foreign judgments since the time of the Mason Court. Russell Smyth, ‘Other Than
494
Federal Law Review
Volume 43
_____________________________________________________________________________________
In this comment, I explore the extent to which Dixon’s functional approach requires
judicial reference to ‘constitutional facts’ and explain how the Court informs itself of
these, before considering the extent to which current parties to constitutional litigation
– and particularly Commonwealth, State and Territory Attorneys-General – are already
presenting this type of factual material to the Court. Against the background of this
currently accepted practice, I conclude by outlining two changes in High Court practice
that would facilitate Dixon’s functionalist approach: the acceptance of a greater role for
amicus curiae in constitutional cases and the expansion of the current notification
regime for constitutional matters.
II THE ROLE OF FACTS IN FUNCTIONAL CONSTITUTIONALISM
Dixon’s functional approach to constitutional interpretation requires the Court to be
informed by a broad range of facts, including ‘evidence as to the practical background
to the relevant legislation, including the practice of other jurisdictions, more extensive
evidence as to the public and legislative debate that informed a particular piece of
legislation, and social science evidence as to the efficacy of alternative regulatory
regimes.’4 For instance, in cases involving the application of a proportionality test, such
as cases involving the implied freedom of political communication, a functional
approach would invite judges to consider a counter-factual analysis, informed by the
practical consequences of the government’s adoption of possible alternative regulatory
regimes to achieve their objectives. Since Dixon’s comment, in the 2015 decision of
McCloy v New South Wales,5 French CJ, Kiefel, Bell and Keane JJ moved the doctrine
more explicitly in this direction. The joint judgment reformulated the Lange test to
include, inter alia, an explicit consideration of ‘necessity’, that is, whether there was an
‘obvious and compelling alternative, reasonably practicable means of achieving the
same purpose which has a less restrictive effect on the freedom.’6
However, while members of the Court may have accepted the need to consider
whether there were reasonable alternative responses, Dixon observes that this has largely
been uninformed by facts – advanced either by submissions or evidence – on this
question. This trend continues. In McCloy, the joint judgment referred to the possible
alternatives proffered by the plaintiffs, and noted that they failed to discharge the onus of
proving how such alternatives could make a practical difference and achieve the
government’s objective within the existing legislative framework.7 Justice Gordon also
considered the practicality of proposed alternatives, largely uninformed by submissions
or evidence other than, in one instance, evidence of the practice in other countries.8
“Accepted Sources of Law”?: A Quantitative Study of Secondary Source Citations in the
High Court’ (1999) 22 University of New South Wales Law Journal 19.
4 Dixon, above n 1, 470.
5 [2015] HCA 34.
6 Ibid [2].
7 Ibid [59]–[61].
8 Ibid [330]–[331], [361]–[362], [379].
2015
Functionalism in Constitutional Interpretation
495
_____________________________________________________________________________________
Dixon anticipates that practical objections to the broader adoption of a functional
approach in constitutional cases would be either that it would ‘overtax the institutional
capacities of the High Court’ or that it would ‘require it to determine – in the absence
of appropriate evidence – questions that are essentially largely factual in nature.’
The facts required to facilitate a functionalist approach are generally known as
‘constitutional facts’, and more specifically, they are ‘the facts relevant to the
constitutional validity of enactments’. 9 The High Court often hears constitutional
matters on an agreed set of facts,10 or on an appeal record, with no ‘evidence’, as such,
tendered to the Court. In 1990, Susan Kenny observed that the High Court had not
‘developed a coherent body of practicable principles to control “constitutional fact”
ascertainment’.11 She explained that ‘Counsel thus lacked practical judicial guidance as
to appropriate fact presentation.’ 12 To adopt a principled functionalist approach,
informed by the necessary constitutional factual matrix, the Court needs to develop
such a body of principles.
While constitutional facts have, on occasion, been proven through the tendering and
testing of evidence,13 they are most often accepted through the doctrine of ‘judicial
notice’.14 The Court will take judicial notice of facts that are ‘generally known’ or
‘notorious’, 15 including through ordinary and common human experience and
knowledge, incontrovertible facts about basic scientific (or other) principles, as well as
matters derived from the simple application of reason. Constitutional facts might also
be what Callinan J referred to as ‘official facts’: ‘official published statistics,
scrupulously collected and compiled, information contained in parliamentary reports,
9 J D Heydon, ‘Constitutional Facts’, in Samuel Griffith Society Proceedings, (2011) volume 23,
ch 10, 85. Constitutional facts are generally seen as a type of legislative fact, distinct from an
adjudicative fact, adopting the distinction drawn in Kenneth Culp Davis, Administrative Law
Treatise (1958), s 15.03. See also P H Lane, ‘Facts in Constitutional Law’ (1963) 37 Australian
Law Journal 108; Bradley Selway, ‘Use of History and Other Facts in the Reasoning of the
High Court’ (2001) 20 University of Tasmania Law Review 129, 135. For consideration of similar
issues in the Canadian context, see P W Hogg, ‘Proof of Facts in Constitutional Cases’ (1976)
26 University of Toronto Law Journal 386, 397.
10 Either through the procedural mechanism of the special case: High Court Rules 2004 (Cth)
rule 27.08; or a removal under the Judiciary Act 1903 (Cth) s 40; or a demurrer decided on the
basis that the facts alleged by the plaintiff are correct: High Court Rules 2004 (Cth) rule 27.07.
11 Susan Kenny, ‘Constitutional Fact Ascertainment (With Reference to the Practice of the
Supreme Court of the United States and the High Court of...
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