Proportionality and Facts in Constitutional Adjudication

This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity and balancing – it considers the nature of these ‘facts’ vis-à-vis the facts that arise in the course of ordinary litigation. The book’s central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when