Judicial Review of Legislators’ Motives

AuthorNathan Van Wees
Date01 December 2017
Publication Date01 December 2017
Nathan Van Wees*
Are legislators’ subjective motives relevant to the constitutional validity of an Act? In
the USA, an Act may be found to be unconstitutional because legislators were motivated
by a desire to discriminate against religion or interstate trade. The High Court has
rejected such an enquiry in cases concerning ss 92 and 116 of our own Constitution. This
article examines how, with substantially similar constitutional protections, the courts of
these two countries have arrived at opposing views on the relevance of ‘motive
evidence’. The High Court can avoid recourse to motive evidence because, when
compared with its US counterpart, it applies a clearer test in the religion cases, and a
more nuanced approach to proportionality testing in the interstate trade cases. This is
the preferable approach.
Questions of evidence in judicial review are rarely discussed, but are closely connected
to decisions about the limits of judicial r eview. What evidence will courts take into
account, and what will they refuse to consider? This article examines limits on ‘motive
evidence’: are legislators’ subjective motives relevant to the constitutional validity of an
Or are they simply beside the point as a matter of substance?
Courts in the United States are willing to look to such evidence to find that a statute
is unconstitutional because it discriminates against religion or interstate trade.
contrast, the High Court has definitively rejected the relevance of legislators’ motives to
cognate questions arising under ss 116 and 92 of the Constitution. Faced with similar
social problems and constitutional arrangements to address those problems, the High
Court of Australia and the Supreme Court of the United States have taken different
routes. After Part II of this article considers some preliminary definitional issues, Part III
will outline the High Court’s rejection of motive evidence in cases concerning ss 92 and
* LLB (Hons), BA (Hons) (Monash); candidate for BCL (Oxon). I thank Matthew Groves for his
assistance with this paper, Alex Lee for many fruitful conversations, and Duncan Wallace
and Shawn Rajanayagam for reviewing an earlier draft. I am similarly indebted to the
anonymous reviewers for their insightful comments. All errors are my own.
I am not concerned here with the question of judicial review of administrative decisions.
The courts also use such evidence in cases involving denial of the equal protection of the laws
through racial discrimination, discussed further below.
682 Federal Law Review Volume 45
Part IV turns to the US, where evidence of lawmakers’ subjective intentions is
considered relevant to substantially similar questions. Staying in the US, Part V looks at
the legal consequences of a finding that legislators acted with unconstitutional motives.
In many cases, such a finding leads to the application of ‘strict scrutiny’—a more intense
form of proportionality testing than would otherwise be applied.
The discussion in Parts IV and V indicates that US courts perceive motive evidence
to be a necessary part of judicial review. Part VI asks whether the High Court is missing
out, so to speak, in not considering such evidence. I conclude that it is not. The High
Court has a more nuanced approach to judicial review which avoids the ‘necessity’ of
resort to motive evidence. This includes the use of relatively clear-cut tests of statutory
purpose in s 116 cases, and the use of a ‘single flexible standard’ in proportionality
testing under s 92, in preference to the ‘categorical’ approach applied in the US. Part VI
also briefly sketches some benefits of motive evidence identified by US commentators,
but finds these to be less persuasive in the Australian context.
Many of the judicial comments in the US cases discussed here will strike a discordant
note to the ears of an Australian lawyer. This article seeks to explain why, and to what
extent, the course taken by the High Court departs from the US practice.
Commentary on the ‘motives’ and ‘purposes’ of legislators does not always use these
terms consistently. Some argue that the ter ms are interchangeable: each refers to the
aims or goals of the legislators. Clark, for example, considers motive and purpose to be
functionally and conceptually ‘identical’, each referring to legislators’ ends.
In my view, there is a clear distinction to be made between purpose and motive. The
goals referred to when speaking of ‘purpose’ are those which appear from the language
and operation of the statutory scheme. By contrast, ‘motives’ are the reasons why
legislators thought fit to pass a law. Thus, ‘[m]otive resides within legislators, while
purpose resides outside them as an attribute of legislation.’
As will be seen in discussion
of the case law in this article, motive is taken by courts (in both the US and Australia) to
be concerned with subjective states of mind, while statutory purpose calls only for an
‘objective’ inquiry.
Consider the example of a statute prohibiting murder.
A court would rightly
interpret this as having the purpose of preventing crime and protecting the community.
The motivations of the legislators, however, may have been to enact the Sixth
Commandment of the Christian bible, with a greater concern over the piety of the
J Morris Clark, ‘Legislative Motivation and Fundamental Rights in Constitutional Law’ (1978)
15 San Diego Law Review 953, 961. See also John Hart Ely, ‘Legislative and Administrative
Motivation in Constitutional Law’ (1970) 79 Yale Law Journal 1205, 121721; Theodore
Eisenberg, ‘Disproportionate Impact and Illicit Motive: Theories of Constitutional
Adjudication’ (1977) 52 NYU Law Review 36, 41.
Jeffrey Shaman, Constitutional Interpretation: Illusion and Reality (Greenwood Press, 2001) 145.
This example is given by Richard H Fallon Jr, ‘Constitutionally Forbidden Legislative Intent
(2016) 130 Harvard Law Review 523, 5578. See also Francis J Beckwith, ‘The Court of Disbelief:
The Constitution’s Article VI Religious Test Prohibition and the Judiciary’s Religious Motive
Analysis’ (2006) 33 Hastings Constitutional Law Quarterly 337, 347.

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