A Brief History of the Judicial Review of Legislation under the Australian Constitution

Abstract

Although lacking an express mandate, since Federation courts have declared legislation ultra vires if they find it contrary to the Australian Constitution. This article undertakes an historical examination in four parts, to determine whether this judicial review of legislation is legitimate.

First, objections to the institution are identified. Second, the justifications for judicial review of legislation developed in the United States, and expressed in the seminal 1803 decision of Marbury v Madison, are examined. Having identified the twin justifications as the supremacy of the Constitution and the primacy of the judiciary in its interpretation, the third section analyses Australian Federation records to see if these justifications are supported, and whether they rebut the objections raised. Finally, the persistence of these justifications after Federation is demonstrated.

It is concluded that evidence of the supremacy of the Constitution, and the primacy of the judiciary in its interpretation, is sufficient to justify judicial review of legislation under the Australian Constitution.