The Commonwealth of Australia

2021 ◽  
pp. 229-262
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Federal Government ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Bill Of Rights ◽  
High Court ◽  
Parliamentary Government ◽  
The Common ◽  
The U.S

This chapter traces the development of judicial review in Australia, which was modeled on the U.S. system of judicial review. Australian judicial review evolved out of a need for an umpiring body in federalism and separation of powers cases. Indeed, the original purpose of the Australian High Court under the Australian Constitution was to umpire federalism disputes between the Commonwealth and the six Australian states, which predated the federal government of Australia; and to ensure that the traditionally guaranteed rights and freedoms of British subjects under the common law and responsible parliamentary government were respected regarding Australia’s citizens. The Australian Constitution does not have a Bill of Rights or an enumerated Judicial Review clause, but it does limit and enumerate the broad powers of the Australian federal government. The Framers of the Australian Constitution, like the Framers of the U.S. Constitution, assumed that the courts would have the power of judicial review. As a result, there is, in Australia, judicial review in federalism and separation of powers umpiring cases but not in Bill of Rights cases since there is essentially no Australian Bill of Rights.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

scholarly journals The best of both worlds? some reflections on the interaction between the common law and the Bill of rights in our new constitution

2017 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Kate J O'Regan
Keyword(s):  
South African ◽  
Judicial Review ◽  
Common Law ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
Organic System ◽  
The Common ◽  
South African Constitution ◽  
The Relationship ◽  
Do So

The relationship between the Bill of Rights in the South African Constitution of 1996 and the common law is analyzed in this paper. "Common law" is understood broadly to include not only the Roman-Dutch law, but also the wide variety of legal sources and traditions which make up South African law, including African tradition, Muslim practice and the English law heritage.Firstly an exposition of the chief characteristics of the hybrid system of South African common law is given. It is shown that the common law is not codified; that it is a living and organic system of law constantly under legislative and judicial review; that its sources vary from judicial precedent to civilian authorities, English, indigenous customary and Muslim law; that the style of litigation and adjudication is English rather than Continental in Character and that when a common law rule is modified, it is done retrospectively in conflict with principles of legal certainty.Secondly the chief constitutional provisions relating to the relationship between the Constitution and the common law are considered. The supremacy clause (section 2) renders a common law rule which is inconsistent with the Constitution invalid from the date of the Constitution unless a court gives a different ruling in accordance with justice and equity. Courts have the inherent power to develop the common law, but the Constitutional Court may do so only in constitutional matters. Two forms of constitutional normative effects may be distinguished: direct (as in sections 2 and 8(1)) and indirect (as in section 39(2)). In terms of the latter the spirit, purport and objects of the Bill of Rights are to guide the development of the common law.Thirdly the interaction between the common law and the Constitution is thoroughly explored with reference to common law rules that are in conflict with the Constitution as well as where the common law already provides protection for the rights provided by the Bill of Rights. These matters are explored with reference to a number of recent judgments of the Constitutional Court, in some of which the common law was effectively developed.It is concluded that the firm normative thrust of the Constitution may well prove to be a rich source of principle for the development of the common law and that the flexibility of the common law may facilitate a cross-pollination between it and the Constitution.

The Constitutional Understanding of Freedoms of Press and Speech, and of Seditious Libel, in Discussions of State and Federal Bills of Rights

2020 ◽  
pp. 337-358
Author(s):  
Wendell Bird
Keyword(s):  
Federal Government ◽  
First Amendment ◽  
Common Law ◽  
Strong Support ◽  
Bill Of Rights ◽  
The Common

As the Constitution was drafted and ratified, many antifederalists expressly feared and opposed the narrow Blackstone-Mansfield definition and approach to freedoms of press and speech, and federalists responding to them gave repeated assurances that the federal government had no power touching press and speech. That was true in both the newspaper debates and the constitutional ratification debates. As the Bill of Rights was adopted and ratified, the preponderance of people discussing seditious libel and seditious words in essays and in legislative settings saw a need for protecting press and speech from being prosecuted as seditious, and understood that an amendment securing freedoms of press and speech would do just that. Both the Senate and the House rejected proposed amendments that would have restricted the expansive words of the First Amendment by the common law of seditious libel. From all viewpoints, there was strong support for the broad language of the First Amendment.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

scholarly journals Kári á Rógvi, West-Nordic Constitutional Judicial Review: A Comparative Study of Scandinavian Judicial Review and Judicial Reasoning (Copenhagen: Djøf Publishing, 2013)

2015 ◽  
Vol 10 (1) ◽  
Author(s):  
Rachael L. Johnstone
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Faroe Islands ◽  
Legal Studies ◽  
Legal Literature ◽  
The Common ◽  
Judicial Reasoning ◽  
The University ◽  
Constitutional Judicial Review ◽  
Selection Of

West-Nordic Constitutional Judicial Review is based on Kári á Rógvi’s doctoral dissertation, defended in 2009 at the University of Iceland with the esteemed Eivind Smith and Guðmundur Alfreðsson as thesis opponents. It provides an excellent account of judicial review in the West-Nordic tradition (Norway, Denmark, Iceland, the Faroe Islands and Greenland) based on a selection of ‘leading cases, reminiscent of the common law approach to legal studies. As such, it is something of a novelty in the Nordic legal literature and a long overdue supplement to what Kári laments as the staid legal treatises that form the basis of Nordic legal educations (323-335).

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

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