Facts and evidence in litigation under the Charter of Human Rights and Responsibilities Act 2006 (Vic.) and the Human Rights Act 2004 (ACT).

• Jurisdiction: Australia
• Date: 01 April 2012
• Author: Tran, Christopher

[In cases brought under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT), whether legislation limits a human right and whether that limitation is demonstrably justified will often depend on facts and evidence about the purpose and effects of the legislation in issue. The use of facts and evidence in this context, as in other contexts within Australian public law, has not been the subject of sustained attention to date. This article analyses how the Victorian and Australian Capital Territory courts have approached such facts and evidence, with an eye to comparative practice and the overseas literature on this topic. It demonstrates that facts about the operation of legislation have been relevant in a number of Victorian and ACT cases, but that the courts have yet to develop a consistent approach to determining those facts. It concludes with reflections on how this topic touches upon broader themes within Australian constitutional law, and thus why this area is in particularly urgent need of clarification.]

CONTENTS

I Introduction II Basic Concepts A Facts in Public Law Litigation B Taxonomies and Issues Associated with the Use of Facts III Comparative and Analogous Practice A Australia B United States C Canada D United Kingdom E South Africa F New Zealand G Summary IV Facts under the Charter and the HRA A Victoria B ACT V Insights from Victoria and the ACT VI Conclusion I INTRODUCTION

The High Court's decision in Momcilovic v The Queen ('Momcilovic') (1) addressed a number of significant issues in Australian public law. One issue that escaped much attention was the role of facts and evidence in litigation concerning the consistency of legislation with statutory human rights Acts. Gummow J (with Hayne J agreeing) explicitly left for another day 'the nature and standard of the evidence or other means by which "reasonable limits" are to be held to be "demonstrably justified'" (2) under s 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter'). Heydon J was more forthcoming, adopting the view that s 7(2) 'contemplates evidence or material of a kind going far beyond the evidence or material ordinarily considered by courts' in determining the meaning and validity of legislation. (3) The other judgments of the Court did not advert to this issue.

The uncertain status of facts in Charter litigation mirrors the High Court's underdeveloped approach to ascertaining facts that are relevant to the constitutionality of legislation. In 1990, Susan Kenny (now Justice Kenny of the Federal Court) observed that the High Court 'has failed not only to develop appropriate measures of review, especially in challenges to legislative validity, but also to agree on evidentiary rules, particularly relating to the burden of proof, to facilitate fact presentation and ascertainment.' (4) This state of affairs has been attributed to the lack of fact-dependent standards in Australian constitutional law, but Kenny's assessment remains apt a little over 20 years later notwithstanding the increased emergence of such standards in recent times. (5) Promisingly, there are signs that the Court and litigants are showing greater sensitivity to the issues in this area. (6)

This article examines how the courts have dealt with facts and evidence in cases involving the Charter and the Human Rights Act 2004 (ACT) ('HRA'). It focuses on facts and evidence relevant to whether legislation limits a right and whether such a limitation is demonstrably justifiable. (7) As explained further in this article, the literature and comparative case law commonly applies the label 'legislative facts' to these sorts of facts. An examination of how courts ascertain legislative facts is important because an accurate understanding of the facts of a case, and therefore a coherent theory of fact finding, is fundamental to the development and application of sound legal principles. (8)

Part II introduces the distinction between legislative and adjudicative facts and highlights the core analytical concepts that are relevant to fact finding in public law litigation. Part III reviews how courts in other jurisdictions have approached facts that are relevant to justifying restrictions of constitutionally or statutorily protected rights. This comparative practice and commentary paints a complex and often conflicting picture, but it provides a useful standard against which to assess the Victorian and ACT experiences. Part IV then examines the cases decided under the Charter and the HRA to date. Very few cases have considered the proper role of facts expressly, and those that have done so are yet to establish a consistent and theorised approach. Finally, Part V teases out the implications of this survey for several larger issues in constitutional theory concerning judicial method, comparativism, and deference.

In adopting this structure, this article seeks to do three things. Parts II and III clarify certain conceptual matters to ensure that any future work on legislative facts in Australia is built on solid foundations. This is particularly useful because legislative facts have received little sustained attention in Australia. Part IV then examines how Victorian and ACT courts have dealt with legislative facts to highlight the topic as one worthy of greater consideration in the future. Finally, Part V links legislative facts to broader themes in constitutional law to show that more is at stake than simply having a coherent stance for litigants preparing their cases (itself a worthy aspiration).

II BASIC CONCEPTS

A Facts in Public Law Litigation

Facts are relevant to judicial review of administrative action in a number of ways. At the most basic level, an administrative decision-maker must apply the law to the facts of the case before them, and facts about how they did so will be relevant to a court upon judicial review. A more complex illustration is the merits-legality dichotomy, which means that courts will scrutinise the legality but not the factual merits of an administrative decision. This distinction is maintained except in the case of 'jurisdictional facts,' the determination of which remains the ultimate responsibility of the courts, (9) and fact finding that is so illogical as to amount to reviewable jurisdictional error. (10) At the same time as the High Court has renewed its interest in facts relevant to the constitutional validity of legislation, the Court has also begun to take a more robust view of these doctrines. (11)

In judicial review of legislation, facts have at least three roles to play. Some approaches to constitutional interpretation depend on an understanding of particular facts. For example, originalist approaches call upon historical facts about what the framers understood at federation. (12) Additionally, some constitutional provisions are drafted in such a way that they are only triggered when a particular entity, purpose or event exists or occurs. Accordingly, facts are needed to establish the existence of that trigger in much the same way as jurisdictional facts in administrative law. For example, the immigration power is only triggered if a person is in fact an 'immigrant'. (13) Finally, some doctrines require a balancing of competing interests, and the factual operation of the legislation in issue is invariably important to this enquiry. An example of this is the implied freedom of political communication. (14)

Domestic human rights litigation may involve judicial review of administrative or legislative action depending on how the human rights instrument is formulated, and it typically proceeds in two stages. (15) The first stage is to determine whether a right has been limited, which will require interpretation of the right itself. If a right has been limited, the second stage in most jurisdictions is to determine whether that limitation is justifiable. Facts are potentially relevant to both stages. Most obviously, whether an administrative or legislative act limits a human right will ordinarily involve facts about how that act affects the right in question. Facts may also be relevant to the interpretation of the right (for example, evidence about embryos may shed light on the meaning of the right to life) (16) and the justification for limiting those rights.

B Taxonomies and Issues Associated with the Use of Facts

It is apparent that different sorts of facts are needed to answer different sorts of enquiries in public law litigation. Some facts are particular to a specific thing or event whereas other facts are more general in nature and relate to, for example, the state of society. For example, evidence of a corporation's activities, which is used to establish whether it is a 'trading or financial' corporation under s 51(xx) of the Constitution, (17) is of a different kind to evidence of the importance of mica to the defence effort so as to engage the defence power. (18) A number of commentators and judges have therefore proposed taxonomies of facts to reflect these differences, (19) the most influential of which is Kenneth Culp Davis' distinction between 'legislative facts' and 'adjudicative facts'. (20) Adjudicative facts 'usually answer the questions of who did what, where, when, how, why, with what motive or intent' and are thus peculiar to specific parties. (21) Legislative facts, on the other hand, 'do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.' (22) One may rightly be sceptical about the utility of all-embracing taxonomies. Categorising facts is by no means a precise science and the categories are unlikely to be rigid or mutually exclusive no matter the typology used. The point is simply that different kinds of facts are needed for different kinds of enquiry. In the context of Charter and HRA litigation, whether a right has been limited will often turn on...