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Section 80 of the Constitution And Functionalism: A Case Note On Alqudsi v The Queen


Hugh Montgomery

This case note aims to provide a brief critique of the High Court of Australia’s decision in Alqudsi v The Queen (2016) 258 CLR 203 (‘Alqudsi’), which considered the compatibility of waiver of a jury trial with section 80 of the Constitution. It particularly critiques the joint judgment of Kiefel, Bell and Keane JJ and the joint judgment of Nettle and Gordon JJ for relying heavily on the wording of section 80 and avoiding the broader ambiguities and indeterminacies of the provision. In doing so, this case note argues the decision of Alqudsi would have been better reasoned and more convincing had the Court been more willing to explicitly adopt ‘functionalist’ reasoning in its interpretation of section 80. This highlights the desirability of more wholehearted functionalist reasoning within Australian constitutional interpretation, especially for unsettled provisions such as section 80.

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