Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Book cover

Statutory Interpretation in Australia (7th ed)

Author(s): Dennis Pearce, Robert Stanley Geddes

Statutory Interpretation in Australia is a comprehensive, annotated, synopsis of statutory interpretation principles in all the Australian jurisdictions. This seventh edition is an update to 1 February 2011. The work is a detailed reference as to a multiplicity of statutory interpretation issues. This well-researched, new edition includes recent updates of case law and legislation, commentary on the “principle of equity”, and a discussion of the Human Rights Acts of Victoria and the Australian Capital Territory. This text is a remarkably inclusive guide to statutory interpretation and is divided into 12 chapters. These chapters include examination of different approaches to legislative interpretation, extrinsic and intrinsic aids to interpretation, and individual consideration for interpreting current acts, repealed or amending acts and codifying acts respectively. The book concludes by considering legislation operating retrospectively and various drafting conventions and expressions. 

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Centre:

Research theme: Administrative Law, Constitutional Law and Theory, Regulatory Law and Policy

Electoral Malapportionment

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

Author(s): Ron Levy

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Judicial Patronage of Honor Killings in Pakistan

Judicial Patronage of ‘Honor Killings' in Pakistan: The Supreme Court's Persistent Adherence to the Doctrine of Grave and Sudden Provocation

Author(s): Moeen Cheema

Pakistan has earned considerable notoriety on the international stage because of its failure to curb violent crimes against women committed in the name of honor. Academic analyses of the state's failure to deter honor killings focus primarily on lacunae in statutory law (especially the Islamized provisions introduced by legislation), while assigning secondary blame to gaps in the criminal justice system, failings of the policing system, and the inherent defects in the workings of the informal tribal or community-based adjudicatory mechanisms. However, most of these studies fail to dissect the perplexing array of Pakistan's laws, especially the different punishment regimes and rules concerning pardon that apply to various categories of murder. As such, these studies miss the mark since the main culprit is neither the substantive legal provisions nor the frequently demonized Islamic law provisions, but rather, the superior judiciary of Pakistan which has historically patronized honor killing by consistently exercising all available discretion in sentencing to the benefit of those accused of such crimes. It is, therefore, important to appreciate the history of the judicial approach towards sentencing and the allegiance to the exculpatory doctrine of grave and sudden provocation in Pakistan, lately in the face of statutory intervention as well as Islamic law doctrines.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Constitutional Law and Theory, Law, Governance and Development, Legal Theory

Book Review: Reflections on Democracy and Deliberation in Australia – Australia The State of Democracy

Author(s): Ron Levy

A few years ago, the convenors of the Australian National University’s Democratic Audit asked scholars of politics and of law to report on democracy in this country. The result is Australia: The State of Democracy. Not an edited collection but an ‘audit’, the book’s three authors have synthesised contributors’ reports into a single volume in order to diagnose the ‘health’ of Australian political life. The result is a revealing fullbody scan of the body politic and the institutions sustaining it.

In this article's review of the book, the focus is on the quality of political deliberation in Australia.

Read on SSRN

Centre: CIPL, CLAH, CMSL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

Author(s): Ron Levy

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Québec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Breaking the Constitutional Deadlock: Lessons from Deliberative Experiments in Constitutional Change

Author(s): Ron Levy

This work provides comparative insights into how deliberation on proposed constitutional amendments might be more effectively pursued. It reports on a new nationwide survey of public attitudes to constitutional reform, examining the potential in Australia of innovative Canadian models of reform led by Citizens’ Assemblies. Assembly members are selected at random and are demographically representative of the wider public. They deliberate over reforms for several months while receiving instruction from experts in relevant fields. Members thus become ‘public-experts’: citizens who stand in for the wider public but are versed in constitutional fundamentals. The author finds striking empirical evidence that, if applied in the Australian context, public trust would be substantially greater for Citizens’ Assemblies compared with traditional processes of change.

The article sets these results in context, reading the Assemblies against theories of deliberative democracy and public trust. One reason for greater public trust in the Assemblies’ may be an ability to accommodate key values that are otherwise in conflict: majoritarian democratic legitimacy, on the one hand, and fair and well-informed (or ‘deliberatively rational’) decision-making, on the other. Previously, almost no other poll had asked exactly how much Australians trust in constitutional change. However, by resolving trust into a set of discrete public values, the polling and analysis in this work provide evidence that constitutional reform might only succeed when it expresses, at once, the values of both majoritarian and deliberative democracy.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Book cover

Cultural Difference on Trial: The Nature and Limits of Judicial Understanding

Author(s): Anthony Connolly

Cultural Difference on Trial: The Nature and Limits of Judicial Understanding comprises a sustained philosophical exploration of the capacity of the modern liberal democratic legal system to understand the thought and practice of those culturally different minorities who come before it as claimants, defendants or witnesses. Exploring this issue from within the tradition of contemporary analytical and naturalistic philosophy and drawing upon recent developments in the philosophy of mind and language, this volume is informed by a sound academic and practical grasp of the workings of the legal system itself. Systematically analysing the nature and limits of a judge's ability to understand culturally different thought and action over the course of a trial, this volume is essential reading for anyone interested in the workings of the modern legal system.

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Centre:

Research theme: Constitutional Law and Theory, Legal Theory

Book cover

The Federal Judicature: Chapter III of the Constitution Commentary and Cases

Author(s): James Stellios

A unique and accessible introduction to the federal judicial system established by Chapter III of the Constitution – the chapter at the centre of the constitutional structures of government in Australia. Its provisions create the federal judicature and define the way in which it operates. Its interpretation has had a pivotal role in the design and operation of all institutions of government at the Federal, State and Territory levels. However, despite its central place in Australia's constitutional framework, Chapter III is not widely understood. This book is designed as an introduction to this important part of the Constitution.

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Centre:

Research theme: Constitutional Law and Theory

judicial_rhetoric_and_constitutional_identity.jpg

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Judicial Rhetoric and Constitutional Identity

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, CMSL, LGDI

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, Law and Gender, Law and Psychology, Law and Social Justice, Law, Governance and Development, Legal History and Ethnology, Migration and Movement of Peoples, Military & Security Law

England and the Rediscovery of Constitutional Faith

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Citizenship and Identity in Diverse Societies

Citizenship and Identity in Diverse Societies

Author(s): Kim Rubenstein, Mark Nolan

This article examines the relationship between the legal status of citizenship and psychological research about blended identity in diverse societies such as Australia. A blended identity could include Australian national identity as well as other identities relevant to a person's self-definition. Analysing the link between citizenship law and the psychological enjoyment of blended identity is important after the reforms to Australian citizenship law in 2007. As discussed below, the former Liberal-National Government introduced a new citizenship knowledge test for citizenship-by-conferral applicants. In doing so, that government expressed strong beliefs about the power of a shared, unitary, national identity. It also supported calls for citizenship applicants to sign a statement of Australian values (different to the citizenship pledge) and to complete an English language test. In light of the reforms and political debate, we attack the suggestion that blended identification (for example, as a Greek Australian) is somehow inconsistent with true Australian national identification and citizenship, and moreover we argue that a single national identification sits uneasily with the legal acceptance of dual and multiple citizenship in current Australian legislation.

Read on SSRN

Centre: CIPL, CLAH, LGDI

Research theme: Administrative Law, Constitutional Law and Theory, Criminal Law, Human Rights Law and Policy, Law and Gender, Law and Psychology, Law and Social Justice, Law, Governance and Development, Legal History and Ethnology, Migration and Movement of Peoples, Military & Security Law

Who’s Responsible

Who’s Responsible? Justiciability of Private and Political Decisions

Author(s): Daniel Stewart

This chapter considers two themes running through this collection: the public/private divide and the national/international divide in the context of the Cole Inquiry. Both the private nature of Australian Wheat Board Limited (‘AWB’) and the international nature of the UN sanctions regime and the Oil-for-Food Programme could be argued to have reduced the Australian Government’s responsibility for the circumstances leading to that inquiry. The Australian government was able to claim that it was not responsible for ensuring the veracity of the information provided by AWB. The Ministers whose portfolios were directly related claimed that the activities of AWB, as a private company, were outside of their control, that they did not know about the payments before they took action, and that other bodies under the UN sanctions regime had the obligation to do more in relation to checking the information provided. The distinctions between public and private, national and international, therefore, were used to deflect responsibility – at least at the political level – away from any deficiencies in the establishment of appropriate governance structures.

Read on SSRN

Centre: CCL, CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Filling or Falling between the Cracks

Introduction: Filling or Falling between the Cracks? Law’s Potential

Author(s): Kim Rubenstein, Jeremy Farrall

This is the introduction to the first volume of the new Cambridge University Press series Connecting International law with Public law.

The first volume is titled Sanctions, Accountability and Governance in a Globalised World and is edited by the authors of this introduction and explores fascinating questions that arise when legal regimes collide. Until now, international and public law have mainly overlapped in discussions on how international law is implemented domestically. While there is some scholarship developing in the area of global administrative law, and some scholars have touched upon the principles relevant to both disciplines, the publications to date contain only a subset of the concept underpinning this book. This first book aims to broaden understanding of how public and international law intersect. It is unique in consciously bringing together public and international lawyers to consider and engage in each other’s scholarship. What can public lawyers bring to international law and what can international lawyers bring to public law? What are the common interests? Which legal principles cross the international law/domestic public law divide and which principles are not transferable? What tensions emerge from bringing the disciplines together? Are these tensions inherent in law as a discipline as a whole or are they peculiar to law’s sub disciplines? Can we ultimately only fill in or fall between the cracks, or is there some greater potential for law in the engagement?

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Commonwealth Power Over Infrastructure

Commonwealth Power Over Infrastructure: Constitutional Tools for National Economic Regulation

Author(s): Fiona Wheeler

This paper considers the extent of the Commonwealth’s power under the Australian Constitution to make laws regulating economic infrastructure such as transport, communications and energy. In this context, the external affairs power in s 51(xxix) of the Constitution, the communications power in s 51(v), the corporations power in s 51(xx) and the interstate and overseas trade and commerce power in s 51(i) are all addressed. The High Court’s strongly nationalist approach to constitutional construction, most recently affirmed in 2006 in its expansive reading of the corporations power in the Work Choices Case, means that the Commonwealth has very substantial, though not unlimited, authority to deal with infrastructure regulation. While the prospect of a wider reading of the interstate and overseas trade and commerce power may further augment Commonwealth authority in this area, gaps in Commonwealth regulatory power are still likely to remain.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory

Chapter 3: Citizenship Law

Chapter 3: Citizenship Law

Author(s): Kim Rubenstein

This chapter analyses Justice Kirby’s constitutional judgments, drawing out various themes in his approach to Australian citizenship law, and considers whether his approach to citizenship has been influenced by underlying ideas that are supranational (acknowledging nationality as a status beyond one nation-state) and universal, as applying to all citizens in all states, or indeed colonial (that is, influenced primarily by Australia’s British subject origins).

The chapter explores the distinction, drawn in several of Justice Kirby's citizenship judgments, between constitutional and statutory forms of nationality. Kirby J has rejected the idea that statutory forms of citizenship adopted by the Federal Parlaiment can define exclusively those who are Australian nationals, and thus 'non-aliens' - that interpretation, he argues, 'deprives the separate constitutional idea of Australian nationality of any content'.

However, while Justice Kirby has been keen to develop a contemporary understanding of the meaning and signifi cance of constitutional nationality, applied in a social and political context far removed from the understanding of the framers of the Constitution, his broadest view of membership beyond statutory citizenship status includes only those non-citizens who hold British subject status and who enjoy most of the rights normally attributed to democratic citizenship (such as voting). This “broad” view does not necessarily include those non-British-subject permanent residents who have spent almost their entire life in Australia and have been absorbed in most other social and political ways. To this extent, his view of citizenship is not supranational or universal, but linked directly to Australia’s historical colonial origins.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

England and the Rediscovery of Constitutional Faith

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law, Law and Religion, Law and Social Justice, Legal Theory, Migration and Movement of Peoples

Chapter 5 Constitutional Law

Chapter 5 Constitutional Law

Author(s): Heather Roberts

Michael Kirby is something of a force of nature. His reputation for energy, ideas and conviction is only eclipsed by his willingness to articulate his views widely to national and international audiences. He is identified with causes and approaches that win him both plaudits and condemnation, though not in equal measure. Any assessment of his contribution to Australian constitutional jurisprudence is inevitably drawn to the conclusion that he sits awkwardly between two eras. He is a legal realist appointed at a time when the ascendant political and legal norms were hostile to that movement. Moreover, his jurisprudence, it would appear, is not developed solely for his time on the Bench but for some future era when his view may gain greater currency.

Michael Kirby is a judge who stands out of his time. This chapter explores the key attributes of Kirby’s interpretative methodology and significant aspects of his understanding of the nature and operation of the Australian Constitution.

Read on SSRN

Centre: CIPL

Research theme: Constitutional Law and Theory, Law and Gender, Law, Governance and Development, Legal History and Ethnology, Private Law, The Legal Profession

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