Part IV Practice and Process, Ch.22 Justiciability
Edited By: Cheryl Saunders, Adrienne Stone
This chapter examines the notion of ‘justiciability’ in Australia. In this chapter, justiciability is understood as referring to issues considered appropriate and capable of being subject to judicial resolution and relief. The primary function of courts is to resolve legal disputes. Constitutional law questions, of their nature, tend to overlap with political, social, moral, and economic issues. Disputes in these areas may raise issues which courts are not well-suited to resolve. Further, there may be a concern about whether a case presents a real controversy for determination which is in dispute between the parties before the court, which is appropriately raised by those parties, and/or which is capable of being quelled in whole or part by judicial remedy. Such issues are linked in the Australian constitutional context to the interwoven requirements that there be a ‘matter’ before the court capable of determination by exercise of the ‘judicial power of the Commonwealth’.