Timing of Constitutional Facts

Abstract

The High Court of Australia is yet to resolve the time when constitutional facts should be assessed. Instead, the Court examines constitutional facts at various points in time, including (1) the legislation’s enactment; (2) the relevant application of the legislation to the plaintiff; and (3) the High Court’s hearing. The time at which constitutional facts are assessed is important, as legislation can shift from valid to invalid over time where the constitutional facts underpinning the legislation’s validity change. This article contends that, generally, constitutional facts should be assessed up until the High Court’s hearing. It is argued that doing so is appropriate because such a timeframe is common to all persons, and enables the Court to reflect changing circumstances by assessing the validity of legislation in its most current context.