A Brief History of the Judicial Review of Legislation under the Australian Constitution

(2012) 40(2) Federal Law Review 227-252.

U. of Adelaide Law Research Paper No. 2017-37

Posted: 25 Sep 2018

See all articles by Matthew T. Stubbs

Matthew T. Stubbs

University of Adelaide - School of Law

Date Written: September 19, 2018

Abstract

Although lacking an express mandate, since Federation courts have declared legislation ultra vires if they find it contrary to the Australian Constitution. This article undertakes an historical examination in four parts, to determine whether this judicial review of legislation is legitimate. First, objections to the institution are identified. Second, the justifications for judicial review of legislation developed in the United States, and expressed in the seminal 1803 decision of Marbury v Madison, are examined. Having identified the twin justifications as the supremacy of the Constitution and the primacy of the judiciary in its interpretation, the third section analyses Australian Federation records to see if these justifications are supported, and whether they rebut the objections raised. Finally, the persistence of these justifications after Federation is demonstrated.

It is concluded that evidence of the supremacy of the Constitution, and the primacy of the judiciary in its interpretation, is sufficient to justify judicial review of legislation under the Australian Constitution.

Keywords: Judicial Review, Australian Constitution

JEL Classification: K1

Suggested Citation

Stubbs, Matthew T., A Brief History of the Judicial Review of Legislation under the Australian Constitution (September 19, 2018). (2012) 40(2) Federal Law Review 227-252., U. of Adelaide Law Research Paper No. 2017-37, Available at SSRN: https://ssrn.com/abstract=3251628

Matthew T. Stubbs (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia
+61883133530 (Phone)

HOME PAGE: http://www.adelaide.edu.au/directory/matthew.stubbs

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
84
PlumX Metrics