The Presumption of Constitutionality

Abstract

The presumption of constitutionality has been frequently invoked in recent judgments of Murphy J in the High Court. The article examines the use of the presumption in the United States and Canada. It then considers the way in which the presumption has been applied in Australia and the justification given for it. It is suggested that although the presumption does not have a clearly recognised place in Australian constitutional theory, the presumption is important and it should be given much greater prominence. For this to happen will require changes in judicial attitude. It also requires Parliament to reassert its role in the determination of constitutional questions.