The Prudential Approach to Constitutional Adjudication

Abstract

The ‘prudential approach to resolving constitutional questions’ is a settled practice of the High Court of Australia. As a principle of judicial restraint, it enables the High Court to refrain from adjudicating on questions of constitutional law. Although it is a long-standing practice, there are many outstanding questions as to the appropriate scope and application of the prudential approach. For example, different Justices have expressed conflicting views as to the application of the prudential approach in a number of recent cases. This paper analyses the jurisprudence of the High Court to clarify these ambiguities, with comparison to equivalent doctrines in the United States, and to answer three issues: whether the prudential approach is truly prudential or constitutional in nature; its relationship to constitutional doctrines of standing and jurisdiction; and its relationship with the duty of the High Court to judicially review the constitutionality of the acts of the other branches of government.

Keywords: prudential approach, judicial process, Australian constitutional law, judicial review

JEL Classification: K19