Abstract

Part I outlines the basic structure of Australia’s constitutional system and considers the source and operation of Australian judicial review. Part II examines the High Court’s approach to judicial review by considering three phases in the Court’s history. First, this Part surveys the formative years of the High Court and the development of its legalistic approach to judicial review, with particular attention given to the High Court’s earliest years, from 1903 to 1919, and Sir Owen Dixon’s tenure as Chief Justice from 1952 to 1964. Second, this Part considers the Mason Court (1987-1995), which was the first High Court to conduct its work without the oversight of the Privy Council. Widely regarded as Australia’s most activist High Court, the Mason Court took a very different view of its judicial review power, making its work of particular interest in this Article. Finally, Part II studies the contemporary High Court, the Gleeson Court, and its attempt to reign in the perceived activism of the Mason years. Examining the High Court’s constitutional jurisprudence beginning in 1998, the year of Chief Justice Gleeson’s appointment, this Article contends that the Gleeson Court’s approach to judicial review bears many hallmarks of the legalistic approach adopted by the early High Court.

Keywords: Judicial review -- Constitutional history, Australia