Australian Constitutional Values

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. Volume 21 in the series Hart Studies in Comparative Public Law Foreword Table of Contents Notes on Contributors Part I:
Introduction: Constitutional Values and Interpretation 1.
Functionalism and Australian Constitutional Values I. The Role of Values in Australian Constitutional Law II. Continued Formalism and the Call for a Functionalist Turn III. The Content of the Functionalist Constitution IV. The Collection and the Functionalist Constitution V. Limits to the Collection and Functionalism 2.
The Justification of Judicial Review: Text, Structure, History and Principle I. Introduction II. Textual Provisions III. Structural Principles IV. Enactment History V. Conclusions 3. Functions, Purposes and Values in Constitutional Interpretation I. Introduction II. The Nature and Source of Constitutional Values III. The Use of Purposes/Functions and Values IV. Interpretation and Construction V. Construction as Rectification VI. Fabricated Implications VII. The Limits of Purpose VIII. Conclusion 4. Functions, Context and Constitutional Values I. Introduction II. The Concept of a Function III. Functions and Intentions IV. The Problem with Originalism V. Constitutional Narratives VI. Constitutional Implications VII. Functions and Context Part II: Legality and Constitutionalism 5.
The Rule of Law I. What is the Rule of Law? II. Textual and Structural Support for the Rule of Law III. The Rule of Law and Constitutional Interpretation IV. Conclusion 6. Government Accountability as a 'Constitutional Value' I. Introduction II. Defining Government Accountability III. Constitutional Guarantees of Accountability IV. High Court Recognition of Accountability as a
'Value' V. Accountability under a Functionalist Approach VI. Conclusion 7. Impartial Justice I. Introduction II. Impartial Justice: Isolating its Constitutional Content and Source III. Functionalism in Action: A Constitutional Value of Impartial Justice IV. Traps within the Value of Impartiality V. Conclusion Part III: Political Democracy 8. Deliberation as a Constitutional Value I. Introduction II. Deliberation as a Constitutional Presupposition III. Deliberation as an Interpretive Value IV. Conclusion 9. Political Equality as a Constitutional Principle: Cautionary Lessons from McCloy v New South Wales I. Introduction II. McCloy v New South Wales III. Openly Unclear IV. Not Properly Sourced in Text and Structure of the Constitution V. Injuring the Project of Political Equality? VI. Concluding Thoughts 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' I. Introduction II. Liberty as a Constitutional Value: Marking out the Territory III. Differing Conceptions of the Relationship between the Individual and the State IV. The Judiciary and Judicial Power V. A Conception of the Judicial Role:
'Who Ought to Pursue these Aims'? VI. Conclusion: The Value of Functionalism 11. Equal Treatment and Non-Discrimination through the Functionalist Lens I. Introduction II. The Values Underlying Constitutional Non-Discrimination Principles III. Tests for Identifying Unequal Treatment or Discrimination IV. Equality and Non-Discrimination Reasoning in the High Court V. Conclusions Part V: Federalism and Constitutional Identity 12. Democratic Experimentalism I. Introduction II. Political Constitutionalism III. Federalism IV. Commonwealth Supremacy V. Conclusion 13. Indigenous Recognition I. Introduction II. The Settler-Colonial Functions of the Original Constitution III. The Meaning of Indigenous Recognition IV. Indigenous Recognition through Constitutional Interpretation V. Australian Constitutional Values and the Future of Indigenous Recognition VI. Conclusion Part VI: National Security and Unity 14. National Security: A Hegemonic Constitutional Value? I. Introduction II. National Security III. A Foundational Value IV. The National Security Trump Card V. Restraining National Security VI. Conclusion: Lessons for the Constitutional Values Project 15. Free Trade as an Australian Constitutional Value: A Functionalist Approach to the Interpretation of the Economic Constitution of Australia I. Introduction II. Free Trade as an Australian Constitutional Value III. Freedom of Interstate Trade IV. Trade and Commerce Power V. Conclusion Index