Melbourne Law School - Theses
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ItemConstitutionally guaranteeing information flow( 2023-06)The thesis outlines the potential and limits of the constitutional recognition of a right to information. Relying on doctrinal and comparative methodology, it draws insights from the South African experience. The research suggests that, while there are theoretically solid justifications for recognising the right, constitutional recognition does not necessarily achieve the goals envisaged for it in practice. To achieve its potential, such a right needs continued acknowledgement and active support from all the branches of government of the state as a whole.
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ItemProportionality and the proof of facts in Australian constitutional adjudication( 2018)This thesis examines the relationship between proportionality and facts in constitutional adjudication. The Australian High Court has developed various tests of constitutional validity that incorporate elements of the tripartite proportionality formula of suitability, necessity and balancing. Yet the scope and content of these tests, including the role of facts, remains uncertain. In addition, while the global spread of proportionality has attracted considerable academic attention, there has been little sustained analysis of the role of facts. In light of this, the thesis seeks to understand the extent to which factual inquiry matters in proportionality reasoning in Australia, both conceptually and in practice. Following this primary research question, the thesis considers how courts currently deal with facts in proportionality reasoning and, second, how an understanding of the nature and significance of facts might assist in the processes of fact-finding. The thesis answers these questions by analysing the conceptual structure of proportionality and the relevance of facts within each of the three stages. To understand the nature of these facts, it evaluates various taxonomies of fact that have been developed and considers how these might apply to proportionality reasoning. Building on this conceptual foundation, the thesis examines how proportionality has been applied by courts in practice. While the primary focus is on Australian constitutional adjudication, the thesis also draws on the experiences of Germany, Canada and South Africa. These comparative perspectives demonstrate how the link between proportionality and facts has been understood in practice, and potentially inform the application and development of proportionality reasoning in Australia. The thesis argues that facts are relevant to all three stages of proportionality reasoning but are likely to be most prominent at the necessity stage. The Australian and comparative jurisprudence illustrates, however, that there is variation in the extent to which questions of fact have been recognised in practice; courts do not always openly acknowledge the factual underpinnings of proportionality and there has been considerable judicial disagreement about whether evidence is necessary or appropriate to inform assessments of proportionality. It is argued, further, that in order to understand the significance of facts there is a need to distinguish more clearly between the types of empirical claims that arise at the different stages of proportionality analysis. While it is possible to draw on existing categorisations of fact that have been developed, such as legislative or constitutional facts, proportionality contains its own distinctive set of questions. It is therefore instructive to consider the facts that arise at each stage separately. The thesis concludes by considering the procedural implications that result from this contextual approach to facts.