Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context

Abstract

The concept of ‘justiciability’ in Australian federal jurisprudence has been described by the High Court as a ‘slippery term of indeterminate reference’. With the High Court yet to comprehensively consider the concept of justiciability, Australia’s jurisprudence has failed to develop a coherent doctrine which is apt to govern the outer limits of judicial power under Chapter III of the Constitution. This article argues the transplantation of UK justiciability jurisprudence into Australia’s constitutional context, as well as doctrinal inconsistencies in UK case law, have resulted in applications of the doctrine which undermine key principles of federal judicial power. Drawing on existing case law, this article proposes a reconceptualisation of justiciability into three categories — constitutional competence, institutional capacity and institutional legitimacy — as a principled framework to be applied and developed by Australian jurists going forward.