Part V Separation of Powers, Ch.29 The Constitutionalization of Administrative Law

This chapter analyses the insertion of the Constitution into the centre of Australian administrative law. This process of constitutionalization has occurred incrementally, driven by context and necessity. There has been little overruling: rather, there have been shifts in language and emphasis, in circumstances almost entirely concerned with the rocky and changeable course of government policy in Australian migration law, and refugee law in particular. Although it need not have been so, constitutionalization has occurred by the High Court's emphasis on section 75(v) of the Constitution. After describing the origins, purpose, and role of section 75(v) as the setting for this change in emphasis, this chapter examines the signs of constitutionalization and the key features of public law litigation which have contributed to it. The chapter concludes with a discussion of some of the consequences of constitutionalization, and what future developments might occur.