This book explores critical issues about how courts engage with questions of fact in public law adjudication.
Although the topic of judicial review — the mechanism through which individuals can challenge governmental action — continues to generate sustained interest amongst constitutional and administrative lawyers, there has been little attention given to questions of fact. This is so despite such determinations of fact often being hugely important to the outcomes and impacts of public law adjudication.
The book brings together scholars from across the common law world to identify and explore contested issues, common challenges, and gaps in understanding. The various chapters consider where facts arise in constitutional and administrative law proceedings, the role of the courts, and the types of evidence that might assist courts in determining legal issues that are underpinned by complex and contested social or policy questions. The book also considers whether the existing laws and practices surrounding evidence are sufficient, and how other disciplines might assist the courts.
The book reconnects the key practical issues surrounding evidence and facts with the lively academic debate on judicial review in the common law world; it therefore contributes to an emerging area of scholarly debate and also has practical implications for the conduct of litigation and government policy-making.
Introduction Anne Carter (University of Adelaide, Australia) and Joe Tomlinson (University of York, UK) Part I: Facts in Constitutional Adjudication 2. The Rise of Facts in Public Law, Paul Daly (University of Ottawa, Canada) and Kseniya Kudischeva (Department of Justice, Canada) 3. Parliaments and Facts: Deepening Deliberation, Gabrielle Appleby (University of New South Wales, Australia) and Anne Carter (University of Adelaide, Australia) 4. One Important Role of Facts in Constitutional Adjudication, Patrick Emerton (Deakin University, Australia) and Jayani Nadarajanlingam (University of Melbourne, Australia) 5. Citizenship Denied - Constitutional Facts, and the Independence of Papua New Guinea, Rayner Thwaites (University of Sydney, Australia) Part II: Facts in Administrative Law 6. The Interdependence of Process and Substance: Facts, Evidence and the Changing Nature of Judicial Review, Jason N E Varuhas (University of Melbourne, Australia) 7. Judicial Review of 'Fact Work': Beyond the Law/Fact Distinction, Joanna Bell (University of Oxford, UK) and Elizabeth Fisher (University of Oxford, UK) 8. Legality in Fact-finding by Executive Decision-Makers: What Role for ultra vires? Emily Hammond (University of Sydney, Australia) 9. Missing Evidence? The Duty to Acquire Systemic Data in Public Law, Joe Tomlinson (University of York, UK) and Cassandra Somers-Joce (University of Oxford, UK) 10. The Treatment of Facts in South African Administrative Law, Glenn Penfold (Webber Wentzel, South Africa) and Cora Hoexter (University of the Witwatersrand, South Africa) 11. Mistake of Fact as a Ground of Review: Distinct and Defensible, Hanna Wilberg (University of Auckland, New Zealand) Part III: Facts in Broader Perspective 12. Indigenous Oral History in Canadian Courts: The Law of Fact-Finding and the Wrong Mistake, Hilary Evans Cameron (Toronto Metropolitan University, Canada) 13. Political Science in the Courtroom: Potential and Pitfalls, Zim Nwokora (Deakin University, Australia) and Jayani Nadarajanlingam (University of Melbourne, Australia) 14. History and Historical Facts in Constitutional Law, Caitlin Goss (University of Queensland, Australia) 15. Defactualisation of Justice, Shiri Krebs (Deakin University, Australia)
Joe Tomlinson is Professor of Public Law at the University of York, UK and Research Director at the Public Law Project, UK. Anne Carter is Lecturer in Law at the University of Adelaide, Australia.
