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High Court Constitutional Challenges to Criminal Law and Procedure Legislation in Australia


Luke McNamara and Julia Quilter

Scholars of criminal law and criminalisation have paid insufficient attention to the use of constitutional challenges in the courts as a strategy for influencing the nature and scope of criminal laws in Australia. This article makes a contribution to filling this gap by analysing 59 High Court of Australia decisions handed down between 1996 and 2016. Our analysis highlights the sorts of criminal laws that have been the subject of constitutional scrutiny, the types of constitutional arguments that have been advanced, and the outcomes achieved. We show that outright ‘wins’ are rare and that, even then, the concept of ‘success’ is complex. We highlight the need to consider the wider and longer-term effects of constitutional adjudication, including how legislatures respond to court decisions. We conclude that challenges to constitutional validity in the High Court represent a limited strategy for constraining how governments choose to legislate on criminal responsibility, procedure and punishment.

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(2018) 41(4) UNSWLJ 1047: