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The fourth edition of this work has involved a thorough rewrite. Each chapter has been looked at again from beginning to end, with fresh choices in some cases made for extracts to bring the book up to date for new materials and scholarship and some material rewritten to provide clearer explanation. While all chapters contain changes, some have involved a more fundamental rewrite. The Supplement below, details changes from the 3rd edition to the 4th edition. For example, the chapters on the executive as well as characterisation and the trade and commerce power have been rewritten to provide a more straightforward structure and to provide greater clarity and contemporary relevance. Other changes have been made in order to restructure the book and to provide room for the substantial new material. Overall, the book is roughly the same length as the last edition due to cuts and streamlining. This has also involved rethinking the placement of some material, such as to group together the grants and appropriations powers of the Commonwealth. The material dealing with human rights has been substantially restructured with the chapters dealing with the implied freedom of political communication rewritten to take account of new developments and to provide space for major new cases. The final chapter on constitutional change has also been reworked to include a section dealing on Bill of Rights issues as a contrast to that on the republic.
Introduces students to key principles, concepts, institutions in Australian Public Law, provides solid foundation for study of constitutional & administrative law. Explained through analysis of mechanisms of power & control, including discussions of functioning of institutions of government & contemporary issues. Authors at Uni of Adelaide.
Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.
This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law. Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers over 100 countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach. Challenging the current boundaries of the field, the contributors offer diverse perspectives - cultural, historical and institutional - as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject.
Providing an interdisciplinary overview of Australian constitutional law and practice, this Handbook situates the development of the constitutional system in its proper context. It also examines recurrent themes and tensions in Australian constitutional law, and points the way for future developments.
To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.
This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test – suitability, necessity, and balancing – it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages. The book has three broad aims: First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.
This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.
During the past decade, administrative law has experienced remarkable development. It has consistently been one of the most dynamic and potent areas of legal innovation and of judicial activism. It has expanded its reach into an ever broadening sphere of public and private activities. Largely through the mechanism of judicial review, the judges in several jurisdictions have extended the ambit of the traditional remedies, partly in response to a perceived need to fill an accountability vacuum created by the privatisation of public enterprises, the contracting-out of public services, and the deregulation of industry and commerce. The essays in this volume focus upon these and other shifts in administrative law, and in doing so they draw upon the experiences of several jurisdictions: the UK, the US, Canada, Australia and New Zealand. The result is a wide-ranging and forceful analysis of the scope, development and future direction of administrative law.