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General / Thematic: Business and Human Rights: The Limits of the Law

Parliamentary Deliberation on Constitutional Limits in the Legislative Process


Gabrielle Appleby and Anna Olijnyk

Like the other branches of government, parliaments are ‘responsible constitutional agent[s]’.[1] They play a formative part ‘in expressing and pursuing’ constitutional government.[2] A dimension of this agency is that parliaments, and more specifically parliamentarians, have a responsibility to consider whether proposed laws overstep the constitutional boundaries of their powers.[3] When, as is the wont of constitutional principles, the relevant limits are uncertain, the task of deliberating about constitutional validity can be challenging. Difficulties increase when a proposed law is an innovative attempt to respond to emerging problems at the edge of doctrine espoused in previous constitutional decisions.

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(2017) 40(3) UNSWLJ 976:

  1. Neal Devins and Keith E Whittington, ‘Introduction’ in Neal Devins and Keith E Whittington (eds), Congress and the Constitution (Duke University Press, 2005) 1, 2.
  2. Amy Gutmann, ‘Forward: Legislatures in the Constitutional State’ in Richard W Bauman and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State (Cambridge University Press, 2006) ix.
  3. See generally Gabrielle Appleby and Adam Webster, ‘Parliament’s Role in Constitutional Interpretation’ (2013) 37 Melbourne University Law Review 255; Andrew Lynch and Tessa Meyrick, ‘The Constitution and Legislative Responsibility’ (2007) 18 Public Law Review 158, 163–4.