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Part IV Practice and Process, Ch.21 Standards of Review in Constitutional Review of Legislation

Susan Kiefel

From: The Oxford Handbook of the Australian Constitution

Edited By: Cheryl Saunders, Adrienne Stone

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 07 August 2020

This chapter explores the High Court's jurisdiction in Australia to review legislation for constitutional validity. Every Australian court of competent jurisdiction has the power to declare a law of the Commonwealth or of a State void because of transgressing the Constitution. The High Court, which is the ultimate court of appeal in Australia, is the authoritative and final interpreter of the Constitution. Though this authority is not expressly stated in the Constitution, it can be discerned through various sources. Furthermore, the methods of review vary according to both the nature of the constitutional head of power under which legislation is said to have been enacted, as well as whether the challenge to the validity of the legislation is based upon its restrictive effect upon a constitutionally protected freedom. These freedoms are not individual rights or freedoms, but instead effect a restriction or limitation on the legislative power of the Commonwealth.

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