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High Court Constitutional Challenges to Criminal Law and Procedure Legislation in Australia

Journal Article


Abstract


  • 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.

Publication Date


  • 2018

Citation


  • L. McNamara & J. Quilter, 'High Court Constitutional Challenges to Criminal Law and Procedure Legislation in Australia' (2018) 41 (4) UNSW Law Journal 1047-1082.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/3751

Number Of Pages


  • 35

Start Page


  • 1047

End Page


  • 1082

Volume


  • 41

Issue


  • 4

Place Of Publication


  • Australia

Abstract


  • 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.

Publication Date


  • 2018

Citation


  • L. McNamara & J. Quilter, 'High Court Constitutional Challenges to Criminal Law and Procedure Legislation in Australia' (2018) 41 (4) UNSW Law Journal 1047-1082.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/3751

Number Of Pages


  • 35

Start Page


  • 1047

End Page


  • 1082

Volume


  • 41

Issue


  • 4

Place Of Publication


  • Australia