The Problem of Judicial Review Revisited
17 Pages Posted: 1 Aug 2017
Date Written: July 20, 2017
Abstract
The institution of judicial review is a vital part of the substructure on which the entire body of Australian constitutional law rests. However, although judicial review is a formidable power of immense significance, its exact constitutional basis is exceedingly difficult to pin down. This paper argues that while there are specific provisions in the text of the Constitution from which the exercise of judicial review may be inferred, such inferences depend on an understanding of the operation of those provisions within the wider structural features of the Constitution and the context of the institutions that the Constitution was intended to establish. It is only when the modalities of text, structure, history and principle are brought into a mutually illuminating and disciplining relationship with each other that judicial review can be constitutionally justified. Moreover, this justification of judicial review has implications for how the Constitution ought to be interpreted. Each of the modalities—text, structure, history and principle—must be brought into mutually illuminating and disciplining relationship if our interpretations of the Constitution are to possess explanatory power, and therefore constitutional authority. Principles and values have a legitimate role to play in constitutional interpretation, only as they are disciplined and illuminated by the Constitution’s text, structure and history.
Keywords: Judicial Review, Constitutional Interpretation
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