Scholars of criminal law and criminalisation have paid insufficient
attention to the use of constitutional challenges in the courts as a
strategy for influencing the nature and scope of criminal laws in
Australia. This article makes a contribution to filling this gap by
analysing 59 High Court of Australia decisions handed down
between 1996 and 2016. Our analysis highlights the sorts of
criminal laws that have been the subject of constitutional scrutiny,
the types of constitutional arguments that have been advanced, and
the outcomes achieved. We show that outright ‘wins’ are rare and
that, even then, the concept of ‘success’ is complex. We highlight the
need to consider the wider and longer-term effects of constitutional
adjudication, including how legislatures respond to court decisions.
We conclude that challenges to constitutional validity in the High
Court represent a limited strategy for constraining how
governments choose to legislate on criminal responsibility,
procedure and punishment.