Conceptions of Judicial Review: Commentary on Dixon
| Author | James Stellios |
| DOI | 10.22145/flr.43.3.8 |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| Subject Matter | Article |
CONCEPTIONS OF JUDICIAL REVIEW: COMMENTARY ON
DIXON
James Stellios*
It is an understandable reflex that, in the face of doctrinal uncertainty and instability, the
High Court would retreat to the text of the Constitution. That has been the case in relation
to two controversial doctrines recognised over the last 25 years. In Lange v Australian
Broadcasting Corporation,
1
a unanimous Court emphasised the need t o ground the
implied freedom of political communication in the text of the Constitution. This
exceptional showing of unanimity followed a period of doctrinal i nstability and wide
critique of the legitimacy of imposing this implied limitation on the political arms of
government. Similarly, the Kable
2
limitation largely began its life as an implication from
the general scheme in Chapter III for the exercise of Commonwealth judicial power. Its
revival as an effective and workable doctrine
3
has coincided with a common
reformulation that anchors it in the essential characteristics of State ‘courts’ which can
be, and have been, vested with federal jurisdiction to exercise Commonwealth judicial
power.
4
While grounding these limi tations in the text might be seen as adding legitimacy to
the interpretive technique, it comes at a cost. The text reveals very little to assist in
determining the mechanics of how the limitations are to operate. This is not a new or
surprising problem. Other implied limitations have long suffered from imprecision of
definition, scope and purpose, including the federal separation of judicial power
principles.
The anchoring of these doctrines in the text of the Constitution arguably disguised the
real concern with these new limitations: that is, the greater role for the judiciary in
protecting the liberty of the individual from an exercise of sovereign power. Traces of
this residue can be seen in the continui ng rejection of the idea that the implied freedom
of political communication protects an individual right
5
and the elevation of concerns
for institutional integrity in the Kable doctrine over the protection of individual liberty.
* Associate Professor, Australian National University; Barrister, NSW Bar.
1
(1997) 189 CLR 520.
2
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
3
As to which see James Stellios, Zines’s The High Court and the Constitution (6th ed, Federation
Press, 2015) 280–294.
4
See, eg, Attorney-General (NT) v Emmerson (2014) 253 CLR 393, 426 [44].
5
See most recently McCloy v New South Wales [2015] HCA 34, [29] (French CJ, Kiefel, Bell
and Keane JJ); [149]–[150] (Gageler J); [247] (Nettle J); [318] (Gordon J).
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