This book examines the constitutional principles governing the relationship between legislatures and courts at that critical crossroads of their power where legislatures may seek to intervene in the judicial process, or to interfere with judicial functions, to secure outcomes consistent with their policy objectives or interests. Cases of high political moment are usually involved, where the temptation, indeed political imperative, for legislatures to intervene can be overwhelming. Although the methods of intervention are various, ranging from the direct and egregious to the subtle and imperceptible, unbridled legislative power in this regard has been a continuing concern in all common law jurisdictions. Prominent examples include direct legislative interference in pending cases, usurpation of judicial power by legislatures, limitations on the jurisdiction of courts, strategic amendments to law applicable to cases pending appeal, and attempts directly to overturn court decisions in particular cases. Because the doctrine of the separation of powers, as an entrenched constitutional rule, is a major source of principle, the book will examine in detail the jurisprudence of the United States and Australia in particular. These jurisdictions have identical constitutional provisions entrenching that doctrine as well as the most developed jurisprudence on this point. The legal position in the United Kingdom, which does not have an entrenched separation of powers doctrine, will be examined as a counterpoint. Other relevant jurisdictions (such as Canada, Ireland and India) are also examined in the context of particular principles, particularly when their respective jurisprudence is rather more developed on discrete points. The book examines how the relevant constitutional principles strive to maintain the primacy of the law-making role of the legislature in a representative democracy and yet afford the decisional independence of the judiciary that degree of protection essential to protect it from the legislature's 'impetuous vortex', to borrow the words of James Madison from The Federalist (No 48).
This book examines the constitutional principles governing the relationship between legislatures and courts at that critical crossroads of their power where legislatures may seek to intervene in the judicial process, or to interfere with judicial functions, to secure outcomes consistent with their policy objectives or interests. Cases of high political moment are usually involved, where the temptation, indeed political imperative, for legislatures to intervene can be overwhelming. Although the methods of intervention are various, ranging from the direct and egregious to the subtle and imperceptible, unbridled legislative power in this regard has been a continuing concern in all common law jurisdictions. Prominent examples include direct legislative interference in pending cases, usurpation of judicial power by legislatures, limitations on the jurisdiction of courts, strategic amendments to law applicable to cases pending appeal, and attempts directly to overturn court decisions in particular cases. Because the doctrine of the separation of powers, as an entrenched constitutional rule, is a major source of principle, the book will examine in detail the jurisprudence of the United States and Australia in particular. These jurisdictions have identical constitutional provisions entrenching that doctrine as well as the most developed jurisprudence on this point. The legal position in the United Kingdom, which does not have an entrenched separation of powers doctrine, will be examined as a counterpoint. Other relevant jurisdictions (such as Canada, Ireland and India) are also examined in the context of particular principles, particularly when their respective jurisprudence is rather more developed on discrete points. The book examines how the relevant constitutional principles strive to maintain the primacy of the law-making role of the legislature in a representative democracy and yet afford the decisional independence of the judiciary that degree of protection essential to protect it from the legislature's 'impetuous vortex', to borrow the words of James Madison from The Federalist (No 48).
Australia has been called the "frozen continent" for its many failures to effect changes to the Constitution via the processes prescribed in section 128. And yet this rigid referendum process has not impeded constitutional advancement. Today the Australian polity wields broad-ranging national powers over most spheres of activities in Australia. The High Court of Australia plays a pivotal role in ensuring that a document devised in a horse and buggy era continues to be of relevance in an age of fast-paced modernity. A broad spectrum of distinguished legal scholars and jurists engage in thoughtful and critical exegesis to explain the continuing evolution of the Australian Constitution.The book was originally conceived as a festschrift to mark George Winterton's retirement as Professor of Constitutional Law at Sydney University. He worked closely with H P Lee on the shaping of the framework of the volume and, in particular, worked very closely with Peter Gerangelos on the chapter which now appears under his name, a chapter which should be regarded as one co-authored with George Winterton. Unfortunately, George passed away without seeing the fruits of his labours. The book stands as a mark of admiration and respect for an outstanding and inspirational scholar.
The essential topics are examined in depth to promote greater insight into constitutional principles, judicial reasoning and overall assessment of the work of the High Court. It includes commentary and materials which will also be of assistance to advanced students, scholars and researchers, as well as to judges and lawyers.
Since the first edition in 1999, Winterton's Australian Federal Constitutional Law: Commentary and Materials has established itself as one of the most respected constitutional law reference works. This book is intended primarily for teaching purposes and contains material covered in virtually all Australian Federal Constitutional Law courses, and, since its third edition, Public Law courses as well. The essential topics are examined in depth to promote greater insight into constitutional principles, judicial reasoning and overall assessment of the work of the High Court. It includes commentary and materials which will also be of assistance to advanced students, scholars and researchers, as well as to judges and lawyers. This fourth edition incorporates recent developments in the law since the last edition, including recent significant cases relating to the Commonwealth's executive and judicial power, the Kable line of case, to implied and express rights, to Commonwealth financial relations and other important aspects of Commonwealth legislative power. There have been significant updates to all existing chapters.
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