Category: Constitutional Law (page 1 of 7)

Re Gallagher: Inconsistency, Imperatives and Irremediable Impediments

Anne Photos 003BY ANNE TWOMEY

The High Court’s judgment in Re Gallagher caused four Members of Parliament to resign and provoked further debate about the amendment of s 44 of the Constitution.  This culminated in a report by the Joint Standing Committee … Read the rest

Burns v Corbett: Courts, tribunals, and a new implied limit on state legislative power

BY STEPHEN MCDONALD

In Burns v Corbett, the High Court unanimously held that State tribunals that are not State courts cannot exercise judicial power with respect to any of the classes of matters listed in ss 75 and 76 … Read the rest

Australia’s First Treaty

BY HARRY HOBBS AND GEORGE WILLIAMS

Last month, the Victorian government introduced a bill into Parliament that would create a legislative basis for negotiating a treaty with Aboriginal people in the state. The bill would establish an Aboriginal representative body … Read the rest

Does the ‘Serious Overseas Criminal Matters’ scheme have serious legal issues?

BY AMANDA SAPIENZA

According to a recent front-page news story (The Australian, Tuesday 13 March 2018), the Serious Overseas Criminal Matters scheme (‘SOCM scheme’) has helped to pay for legal assistance for Peter Scully, Cassie Sainsbury, Schapelle Corby, David Hicks, … Read the rest

The High Court on Constitutional Law: The 2017 Term Keynote Address to 2018 Constitutional Law Conference

BY JUSTIN GLEESON SC

 

This post is a keynote paper that was delivered by Justin Gleeson SC at the 2018 Constitutional Law Conference in Sydney. Noting that other papers at the conference covered individual cases from 2017, Mr Gleeson Read the rest

“Exclusive Cognisance” and Cognitive Dissonance: Alley v Gillespie

BY TONY BLACKSHIELD

Section 44 of the Constitution – which provides that various categories of persons are incapable of being chosen to sit in the federal Parliament – has been the subject of extraordinary controversy since 2017. In this post, Read the rest

Legislation as a Method of Constitutional Reform: An Alternative to Formal Amendment?

BY LAEL K WEIS

A striking feature of current debates about constitutional reform in Australia is the evident interest in exploring legislative alternatives to formal amendment. Although this may be explained by the historically low success rate of referendums, the Read the rest

Re Nash [No 2]: The Essence of Time

BY ARTHUR MARUSEVICH

On 15 November 2017, when the High Court sitting as the Court of Disputed Returns handed down its decision in Re Nash [No 2] [2017] HCA 52, it became clear that the 2016 general election was … Read the rest

The Principle of Legality as a Reflection of the Constitutional Relationship between Parliament and the Courts

BY DAN WESTBURY

Australian legislatures and courts interact through the process of statutory construction. As part of this process, the principle of legality represents a subtle constraint by courts on Parliament. It is a rule of statutory interpretation that courts … Read the rest

‘For Your Private Consideration’: Secret Documents and the Public Meaning of the Constitution

BY HENRY COOPER

It is requisite that [a] resolution be notified to the people who are to obey it. … [I]t is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who

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