Rights-Based Constitutional Review
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Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.
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Chapter 4: Australia

James Stellios and Matthew Zagor


Chapter 4.1 Stellios (‘Australian constitutionalism and the UK-style dialogue model of human rights protection’) discusses the attraction exerted by the British dialogue model of human rights protection for the Australian legal order. The domestic constitutional framework for the exercise of judicial power was not contemplated as presenting obstacles when two jurisdictions, namely the Australia Capital Territory and Victoria, adopted bills of rights modelled on the UK-style dialogue. However, Stellios analyzes to what extent the decision of the High Court in Momcilovic has seemingly frustrated the operation of such a dialogue model by relying on separation of judicial power principles without much reflection about their theoretical underpinnings and ‘certainly without any regard to liberty protecting understandings’. The thrust of the argument is that Australian constitutionalism does not allow a wider role for the judiciary in the protection of rights. Its role is limited to applying conventional interpretive assumptions about legislatures and not intruding into rights—and this has little prospect of changing in the absence of a constitutional amendment. Chapter 4.2 The focus of Zagor’s chapter (‘Adventures in the grey zone: constitutionalism, rights and the review of executive power in the migration context’) is about the relationship between the executive and the judiciary in the context of rights protection by public authorities. Indeed, in the absence of a bill of rights at federal level in Australia, ‘human rights claims have found a home in administrative law’. Zagor contrasts ‘the notorious rights reluctance of the Australian political system and its culture of deference and trust in the executive with the architecture of administrative justice that has developed over the past three decades, as well as the contentious role played by “legalism” as both a shield and a sword in the juridical arsenal for scrutinizing executive conduct’. Drawing on Dyzhenhaus' metaphor of legal ‘grey holes’, Zagor describes how an impression of legality is created by the legislative and judicial endorsement of strategies which exclude 'more elevated and openly political forms of rights review’ of executive conduct. This response to deferential government arguments is then explored through the examination of key cases—Tampa; Al-Kateb; Plaintiff S157; and Plaintiffs M61 and M70 cases—in which the judiciary have considered the source, depth, and breadth of the executive power in a migration context.

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