The Federation Press

The High Court at the Crossroads

Essays in constitutional law


Between 1995 and 1998, five of the seven judges of the High Court resigned or retired. Has the change in personnel resulted in an equal shift in approach? Does the new bench adhere to the policy-oriented approached that characterised the Mason Court? If not, has a coherent, consistent but different line emerged? What conclusions can be drawn?

Yes to the first question, firmly answer the leading practitioners and academics who contribute to this book on current trends in constitutional interpretation. But No, to the second and third.

Most members of the current Court, they argue, appear unwilling to embrace the Mason Court’s approach. Recent decisions, their analyses show, reflect new approaches to constitutional interpretation but ones that are at times more contradictory than consistent.

This book covers the most important topics in contemporary constitutional law, and contains new insights and fresh approaches from leading writers from around Australia. Each Chapter deals with a topic of great contemporary interest and is written in a form that will appeal to practising lawyers as well as academics.


“[The book] comprises six chapters each of which deals with a significant decision of the High Court since 1997. A commentary follows each chapter, so that the arguments are mapped in an argumentative and provocative style. This organisation of the papers directly engages the reader in the arguments germane to the decisions considered. The cases go to the heart of the Australian constitutional system. ...the overarching theme, to which many of the contributors advert, is whether the jurisprudence of the High Court has altered since the so-called Mason era. ... [The book] comprises a collection of provocative ’essays on constitutional law’ which constitutional lawyers especially will enjoy. The publication is also of immense value to law students and teachers for its insight into recent developments in the High Court.” - Jnl of Judicial Administration, February 2001

“One of the most thought provoking collection of essays that I have read in a long time.” - Tasmanian Law Society Newsletter, November 2000

[S]everal decisions analysed closely by the contributors have very considerable practical significance for the Federal Court and, for that matter, other courts exercising the judicial power of the Commonwealth. ...
The inconvenient results flowing from cases like Re Wakim and Abebe and the emphasis on the primacy of the text of the Constitution suggest a retreat towards a “strict and complete legalism” in constitutional adjudication. But, as the contributors remind us, this is too simplistic a view. ...
the Court’s recent Chapter III jurisprudence is inexplicable, except as a consequence of policy judgments on issues as fundamental as the rule of law itself. ... The chapters in this volume show that constitutional adjudication, like other aspects of judicial law-making, is not a policy-free zone. - The Hon Justice Ronald Sackville, from the Foreword

Table of Contents

The Hon Justice Ronald Sackville

The Freedom of Political Communication since Lange
Adrienne Stone; Commentary: Nicholas Aroney

Mr Egan, The Legislative Council and Responsible Government
Bradley Selway QC; Commentary: Simon Evans

Sue v Hill — The Evolution of Australian Independence
Anne Twomey; Commentary: Chris Horan

Chapter III and Legislative Interference with the Judicial Process: Abebe v The Commonwealth and Nicholas v The Queen
Linda J Kirk; Commentary: Henry Burmester

Chapter III and the Powers of Non Judicial Tribunals: Breckler and Beyond
MA Perry; Commentary: George Williams

The Bizarre Destruction of Cross Vesting
Dennis Rose; Commentary: A Valediction Forbidding Mourning: Brian R Opeskin

The Present State of Constitutional Interpretation
Leslie Zines

Table of Cases
Table of Statutes

Of interest...