Rights Review in the High Court and the Cultural Limits of Judicial Power (original) (raw)

The High Court, the Constitution and Australian Politics

The High Court, the Constitution and Australian Politics The High Court, the Constitution and Australian Politics is an in-depth exploration of the relationship between decisions of the High Court and broader political currents in Australia. It begins with an investigation of the patterns and effects of constitutional invalidation and dissent on the High Court over time, and their correlation with political trends and attitudes. It also examines the role of constitutional amendment in expressing popular constitutional understandings in the Australian system. Subsequent chapters focus on the eras marked by the tenure of the Court's 12 Chief Justices, examining the decisions of the Court in the context of the prevailing political conditions. Together, the chapters canvass a rich variety of accounts of the relationship between constitutional law and politics in Australia, and of how this relationship is affected by factors such as the process of appointment for High Court judges and the Court's willingness to consider political and community values. With contributors from among Australia's leading constitutional lawyers and political scientists, this book is an important contribution to the fields of both law and politics, and to comparative constitutional law more generally.

Natural justice and the High Court of Australia : a study in common law constitutionalism

1999

The aim of this thesis is to explore the evolution of the doctrine of natural justice in Australia, with particular emphasis on the work of the High Court of Australia. The essence of the argument is that today, the Court views natural justice as a doctrine of constitutional law-that in the Court's mind, natural justice amounts to a central principle of the "common law constitution". This argument is borne out, it is argued, by a consideration of the High Court's holdings in natural justice cases during the past twenty-five years.

Rights, ‘Dialogue’ and Democratic Objections to Judicial Review

Federal Law Review

Ibid 105. Federal Law Review Volume 32 ____________________________________________________________________________________ supply of new theories purporting to reconcile judicial review with a particular philosophical conception of democracy or political legitimacy, Hogg and Bushell's argument is notable for its theoretical modesty. It simply insists that, even if democracy is just about the enactments of legislative majorities, we need to acknowledge that legislative objectives are rarely thwarted by court decisions about Charter rights. One interesting question raised by Hogg and Bushell's study, which has been much discussed in Canada, 5 is the extent to which it has relevance beyond the particularities of the Charter's structure and text, and specific features of Canadian history, politics and institutions. Does the analysis contain general insights about the democratic credentials of rights-based judicial review? 6 This article seeks to shed some light on that question by asking a more specific one: does Hogg and Bushell's argument have any lessons to contribute to ongoing debates about rights-based judicial review in the Australian constitutional context? After explaining Hogg and Bushell's account of 'dialogue' in more detail (Part 2), I examine, in Part 3, whether judicial review of the limited rights and freedoms currently contained in the Australian Constitution might be usefully analysed along similar dialogic lines. While there are reasons for concluding that the metaphor of 'dialogue' has considerably less resonance in Australia than in Canada, the idea nonetheless can be invoked to challenge the straightforward sense in which the High Court of Australia's word is sometimes taken to be final. In particular, I will suggest that critics of the High Court's controversial implied rights jurisprudence are apt to consider its democratic costs higher than in truth they are. Part 4 of the article considers whether the possibility that a Canadian style 'dialogue' might be generated in other jurisdictions should moderate the strong democratic objections raised in Australia to the (re)current proposals for the introduction of a bill of rights. This discussion essentially raises two issues: (1) the extent to which 'dialogue' (of the sort described by Hogg and Bushell) can overcome democratic objections to judicial review, and (2) whether, in any event, the institutional interaction between courts and legislatures in Australia would be likely to take a _____________________________________________________________________________________ 5 In Vriend v Alberta [1998] 1 SCR 493, 565-6 Cory and Iacobucci JJ referred to Hogg and Bushell's metaphor of 'dialogue' as 'aptly' describing the interaction between legislatures and courts, and argued that it enhanced the democratic process. For a sampling of the growing academic literature, see

Judicial Activism and Constitutional (Mis) Interpretation

The University of Queensland Law Journal, 2021

In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.

Comparative constitutional adaptation: Democracy and distrust in the High Court of Australia

International Journal of Constitutional Law, 2021

The ideas developed by Ely in Democracy and Distrust have had an important influence on at least one member of the High Court of Australia—Justice Stephen Gageler, first as counsel and now as a justice of the Court. This influence has not involved the straightforward “borrowing” of those ideas. Rather, it has involved a more standard-like application of US-style tiered scrutiny in contexts such as the protection of the “channels of political change” and giving narrower ambit to the judicial protection of “discrete and insular minorities.” This, the article suggests, reflects a distinctive form of comparative constitutional adaptation—a process involving, first, the attempt to develop a contextual understanding of Ely’s thought; second, a quite “thick” or “deep” form of comparison between the original and new context; and third, a context-sensitive adaptation of the theory to that new setting. This comparative adaptation has some similarity to the process of “recontextualization” ide...

Political Constitutionalism and Judicial Review

The principal academic challenge to the legitimacy of judicial review is presently the work of political constitutionalists. Their main focus hitherto has been constitutional review, but there is now also literature challenging non-constitutional review, which is explored in this paper. The structure of the argument is as follows. In part one the political constitutionalist argument against constitutional review is considered. I do not claim to add to the sophisticated literature on this issue, but its relevance to the Human Rights Act 1998 will be considered. The implications of political constitutionalism for judicial review in administrative law are however much less well-developed. Thus parts two and three critically assess what are termed the radical and moderate view of political constitutionalism. In part four legal constitutionalism is revisited and a moderate view thereof is presented that best captures the legitimacy of judicial review in administrative law, and provides a...