Functionalism in Constitutional Interpretation: Factual and Participatory Challenges: Commentary on Dixon

Abstract

In this comment, I explore the extent to which Dixon’s functional approach requires judicial reference to ‘constitutional facts’ and explain how the Court informs itself of these, before considering the extent to which current parties to constitutional litigation – and particularly Commonwealth, State and Territory Attorneys-General – are already presenting this type of factual material to the Court. Against the background of this currently accepted practice, I conclude by outlining two changes in High Court practice that would facilitate Dixon’s functionalist approach: the acceptance of a greater role for amicus curiae in constitutional cases and the expansion of the current notification regime for constitutional matters.