Conceptions of Judicial Review: Commentary on Dixon

Abstract

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, a unanimous Court emphasised the need to ground the implied freedom of political communication in the text of the Constitution. This exceptional showing of unanimity followed a period of doctrinal instability and wide critique of the legitimacy of imposing this implied limitation on the political arms of government. Similarly, the Kable 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 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. Show more