FRAMEWORK

Authority for Review

Constitutional review, in the sense of judicial review of the actions of all organs of State, including the legislature on grounds of constitutionality, is an established feature of Australian constitutional arrangements. Review was assumed by the framers of the Constitution either as a consequence of the status of the Constitution as an act of the Imperial Parliament or as a necessary incident of federation or both. It was accepted with equanimity by the first Commonwealth Attorney General, charged with the responsibility of introducing the legislation to establish the High Court. That Court entertained a range of constitutional disputes in the first year of its establishment, and within five years, it had invalidated laws of both the Commonwealth and some State Parliaments, consistent with Quick and Garran's expectation that it would be a “guardian of the Constitution” against “encroachments” from both spheres. In 1951, a Justice of the High Court described “the principle of Marbury v. Madison” as “axiomatic” in Australia. The description has become de rigueur, and it unquestionably reflects Australian practice.

It is occasionally noted, nevertheless, that the Constitution does not explicitly provide for review. Review of legislation on grounds of constitutionality also jars with one strand of the Australian constitutional inheritance, although it is entirely compatible with the other. Neither of these points should be overstated.