Facts and Evidence in Litigation under the Charter of Human Rights and Responsibilities Act 2006 (VIC) and the Human Rights Act 2004 (ACT)

Article excerpt

[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.]


  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


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. …