Full Description
Vigorous debate exists among constitutional scholars as to the appropriate 'modalities' of constitutional argument, and their relative weight. Many scholars, however, argue that one important modality of constitutional argument involves attention to underlying constitutional purposes or 'values'. In Australia, this kind of values-oriented approach has been advocated by leading constitutional scholars, and also finds support in the judgments of the High Court at various times, particularly during the Mason Court era. Much of the scholarly debate on constitutional values to date, however, focuses on whether the Court should in fact look to constitutional values in this way, not the kinds of values the Court should consider, given such an approach.
This book responds to this gap in the existing scholarly literature, by inviting a range of leading Australian constitutional lawyers and scholars to address the relevance and scope of various substantive constitutional values, and how they might affect the Court's approach to constitutional interpretation in various contexts. It is essential reading for anyone seeking a deeper understanding of Australia's constitutional system.
Contents
PART I: INTRODUCTION: CONSTITUTIONAL VALUES AND INTERPRETATION
1. Functionalism and Australian Constitutional Values
Rosalind Dixon
2. The Justification of Judicial Review: Text, Structure, History and Principle
Nicholas Aroney
3. Functions, Purposes and Values in Constitutional Interpretation
Jeffrey Goldsworthy
4. Functions, Context and Constitutional Values
Jonathan Crowe
PART II: LEGALITY AND CONSTITUTIONALISM
5. The Rule of Law
Lisa Burton Crawford
6. Government Accountability as a 'Constitutional Value'
Janina Boughey and Greg Weeks
7. Impartial Justice
Sarah Murray
PART III: POLITICAL DEMOCRACY
8. Deliberation as a Constitutional Value
Scott Stephenson
9. Political Equality as a Constitutional Principle: Cautionary Lessons from McCloy v New South Wales
Joo-Cheong Tham
PART IV: INDIVIDUAL LIBERTY AND EQUALITY
10. Liberty as a Constitutional Value: The Difficulty of Differing Conceptions of 'The Relationship of the Individual to the State'
James Stellios
11. Equal Treatment and Non-Discrimination through the Functionalist Lens
Amelia Simpson
PART V: FEDERALISM AND CONSTITUTIONAL IDENTITY
12. Democratic Experimentalism
Gabrielle Appleby and Brendan Lim
13. Indigenous Recognition
Dylan Lino
PART VI: NATIONAL SECURITY AND UNITY
14. National Security: A Hegemonic Constitutional Value?
Rebecca Ananian-Welsh and Nicola McGarrity
15. Free Trade as an Australian Constitutional Value: A Functionalist Approach to the Interpretation of the Economic Constitution of Australia
Gonzalo Villalta Puig
