Relevant bibliographies by topics / Insanity (Law) Jurisprudence Australia

Academic literature on the topic 'Insanity (Law) Jurisprudence Australia'

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Published: 10 December 2022
Last updated: 28 January 2023

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Journal articles on the topic "Insanity (Law) Jurisprudence Australia"

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Finnane, Mark. "‘Irresistible impulse’: historicizing a judicial innovation in Australian insanity jurisprudence." History of Psychiatry 23, no. 4 (November 19, 2012): 454–68. http://dx.doi.org/10.1177/0957154x12450128.

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In twentieth-century Australian criminal law a distinctive departure from the M’Naghten Rules developed as a critique of the discourse of reasoning and verdicts applying in the relevant English trials from the 1880s. The English verdict of ‘guilty but insane’ was criticized by the leading jurists as contradictory. In a sequence of influential judgments, the jurist Owen Dixon articulated an approach to the insanity defence that made room for a medico-legal discourse which broadened the possible referents of what it meant to ‘know’ the legality of an act, and also acknowledged the complex behavioural factors that might determine an act of homicide. This paper explores the shaping and significance of this departure and its comparative judicial, medical and social contexts. A concluding discussion considers whether the more flexible interpretation of the insanity defence implied by the direction of Dixon’s decisions made as much of a difference to frequency of use of the defence as the contemporaneous decline and eventual abolition of capital punishment.
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Laufer, William S. "The jurisprudence of the insanity defense." Journal of Legal Medicine 16, no. 3 (September 1995): 453–59. http://dx.doi.org/10.1080/01947649509510988.

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Hawk, Gary. "Book Review: The Jurisprudence of the Insanity Defense." Criminal Justice Review 21, no. 2 (September 1996): 276–77. http://dx.doi.org/10.1177/073401689602100217.

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Menninger, Karl A. "Book Review: The Jurisprudence of the Insanity Defense." Journal of Psychiatry & Law 25, no. 3 (September 1997): 413–17. http://dx.doi.org/10.1177/009318539702500309.

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Edney, Richard. "Indigenous punishment in Australia: a jurisprudence of pain ?" International Journal of the Sociology of Law 30, no. 3 (September 2002): 219–34. http://dx.doi.org/10.1016/s0194-6595(02)00026-6.

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Croft, Clyde. "Recent Developments in Arbitration in Australia." Journal of International Arbitration 28, Issue 6 (December 1, 2011): 599–616. http://dx.doi.org/10.54648/joia2011046.

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Australia has recently modernized its international and domestic commercial arbitration law to reflect (with some amendments) the 2006 version of the UNCITRAL Model Law on International Commercial Arbitration. As well as legislative reform, Australia has taken practical steps such as providing new dispute resolution facilities and specialist court arbitration lists to enhance Australia as an arbitral seat. Recent judgments by Australian courts have been supportive of international arbitration and have indicated a willingness to apply the international jurisprudence relating to the Model Law and the New York Convention. These improvements have increased Australia's attractiveness as an arbitral seat.
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Bastani, Amir, and Colin Gavaghan. "Challenges to "a Most Dangerous Doctrine" or a "Fantastic Theory" of Volitional Insanity." Victoria University of Wellington Law Review 47, no. 4 (December 1, 2016): 545. http://dx.doi.org/10.26686/vuwlr.v47i4.4788.

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In theory, an insanity defence can take two forms: the cognitive form (C-insanity) and the volitional form (V-insanity). The defence of C-insanity recognises that a disordered state of mind can make the ability to understand the nature of an action impossible. On the other hand, V-insanity is recognised in some common law jurisdictions, such as all jurisdictions in Australia except for Victoria and New South Wales, and is a full defence. It recognises that a disordered state of mind can make the exercise of self-control impossible. However, that disordered state of mind does not necessarily affect the understanding of the nature of the act impossible.
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Boyle, Liam. "The Significant Role of the Australia Acts in Australian Public Law." Federal Law Review 47, no. 3 (July 3, 2019): 358–89. http://dx.doi.org/10.1177/0067205x19856501.

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The Australia Acts accomplished more than symbolic change. They brought about a super-structural change to Australian constitutional law, and shortly afterwards a fundamental change to the public law jurisprudence in Australia emerged. This article presents an argument that these changes are inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point for fundamental change to the Australian legal system.
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Barnett, Hilaire. "The province of jurisprudence determined-again!" Legal Studies 15, no. 1 (March 1995): 88–127. http://dx.doi.org/10.1111/j.1748-121x.1995.tb00054.x.

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This report presents the findings of the survey conducted in 1993/94, this survey being an updated version of one conducted in 1983/94. The present study has been expanded to cover Australian and Canadian (Common Law) universities, and as in previous surveys has been conducted primarily through the medium of a detailed questionnaire.In each of the jurisdictions surveyed there exist parallel concerns about legal education and, of more direct interest here, the role of Jurisprudence and Legal Theory within the law curriculum. By drawing on data received from Australia, Canada and the United Kingdom and the literature on legal education, this article aims to provide a comparative study of the extent to which Jurisprudence features in the academic training of the next generation of lawyers, a large proportion of whom will enter a profession characterised by a shared common law tradition.
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Kiefel, Susan, and Gonzalo Villalta Puig. "The Constitutionalisation of Free Trade by the High Court of Australia and the Court of Justice of the European Union." Global Journal of Comparative Law 3, no. 1 (May 29, 2014): 34–49. http://dx.doi.org/10.1163/2211906x-00301002.

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Together with matters of multilateral and bilateral regulation, domestic regulation affects the law and policy of economic relations between the European Union (eu) and Australia. This article discusses the constitutional determinants of the Australian single market and the significance to its development of the free trade jurisprudence of the Court of Justice of the European Union. When Australia was federated, free trade between the States and the removal of barriers at the borders were at the forefront of constitutional objectives. They find expression in Section 92 of the Australian Constitution. It took some time for the jurisprudence to develop by reference to principles of competition. Recent decisions of the High Court of Australia highlight the need to prove that a law or measure may have anti-competitive effects within a market to hold it invalid. Application of this (unacknowledged) test of proportionality invites comparison with eu law and opens to question the usefulness of protectionism as a criterion of constitutional invalidity for trade without borders in the ‘new economy’.
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Dissertations / Theses on the topic "Insanity (Law) Jurisprudence Australia"

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Herne, Stephen Charles. "A jurisprudence of difference : the denial of full respect in the Australian law of native title." University of Western Australia. Law School, 2009. http://theses.library.uwa.edu.au/adt-WU2008.0262.

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Dorsett, Shaunnagh Law Faculty of Law UNSW. "Thinking jurisdictionally: a genealogy of native title." Awarded by:University of New South Wales. School of Law, 2005. http://handle.unsw.edu.au/1959.4/23963.

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In Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1, the majority of the High Court held that ???native title??? had survived the acquisition of sovereignty over the Australian continent and is ???recognised??? by the common law. However, all the judgments failed to articulate clearly either the nature of native title as a legal form, and the relationship of that legal form to the common law, or what is meant by ???recognition???. Twelve years later the High Court has still not provided a satisfactory understanding of any of these matters. The central problem investigated by this thesis is the nature of that relationship and of the legal interest of native title. It is contended that this relationship can be understood and ordered as a matter of jurisdiction. This thesis seeks to recuperate a substantive concept of jurisdiction, and specifically of a particular jurisdiction, that of the common law, and to demonstrate how the interest of native title results from the jurisdictional relationship between common law and indigenous law. Part I is a genealogy of native title, drawn out through a history of ideas about common law jurisdiction. It is an account of the legal practice of jurisdiction, through a conceptual elaboration of a particular jurisdiction: the common law. This part traces the history of the common law from its origins in a pluralistic, fragmented, jurisdictional landscape, to its current position as the ???law of the land???. It considers the traditional mechanisms and techniques through which the common law has ordered its relationships with other jurisdictions, and how it has appropriated matters traditionally within the purview of other jurisdictions, accommodating them within the common law as ???custom???. The thesis demonstrates that the same gestures and practices can be seen in modern native title decisions, and contends that the ordering which underpins both native title, and the Australian legal system, is jurisdictional. Part II examines the practice of jurisdiction through an examination of three technologies of jurisdiction, all of which contributed to the construction of the legal entity of native title as an act of jurisdiction: mapping, accommodation and categorisation.
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Spagnolo, Benjamin James. "Kelsen and Raz on the continuity of legal systems : applying the accounts in an Australian context." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:a9025e33-e70e-49e9-994f-52f8daa311fd.

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This thesis has three objectives. Its primary objective is to examine, and critically evaluate, the theoretical accounts offered by Hans Kelsen and Joseph Raz to explain the temporal continuity and discontinuity of legal systems. In particular, it evaluates the explanatory power of those accounts by combining an abstract analysis of the accounts in principle and an evaluation based on systematically applying them to one concrete, historically circumstanced instance: the legal systems of British derivation in Australia between 1788 and 2001. The thesis thus tests each account’s factual fit: how adequately it corresponds to, accords with, and persuasively makes sense of, the facts – including complex social facts, attitudes and normative standards – for which it purports to offer an account. Second, the thesis aims to demonstrate, more generally, the utility of applying theoretical accounts to a particular historical instance to complement abstract analysis. Third, the thesis aims to advance the understanding of the evolution of Australian legal systems between 1788 and 2001. These three objectives are achieved through the critical exposition and reconstruction of the accounts, their development and enrichment where refinement is appropriate, their application to the specific context of Australia and their evaluation, individually and in comparison.
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Luker, Trish, and LukerT@law anu edu au. "THE RHETORIC OF RECONCILIATION: EVIDENCE AND JUDICIAL SUBJECTIVITY IN CUBILLO v COMMONWEALTH." La Trobe University. School of Law, 2006. http://www.lib.latrobe.edu.au./thesis/public/adt-LTU20080305.105209.

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In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.
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Hall, Katherine Helen. "Mind the gap : psychological jurisprudence and the professional regulation of lawyer dishonesty." Phd thesis, 2011. http://hdl.handle.net/1885/151226.

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This thesis considers the role of professional regulation in disciplining lawyer dishonesty. It defines dishonesty as acts done, whether at the suggestion of a partner, a client or another lawyer, that enable a client to act dishonestly. In particular, it focuses upon the professional norms, practices and rules that regulate large firm lawyer misconduct in Australia. As the size and sophistication of law firms has grown, so too has evidence of lawyers being complicit in the dishonest actions of their clients. This thesis examines how lawyers working within these environments navigate the practical and psychological challenges of acting honestly for their clients. It undertakes a theoretical inquiry into both the importance of lawyer honesty and the often conflicting norms and pressures of large firm practice . It also draws upon research in cognitive and social psychology to develop an empirically-grounded framework for lawyers' decisions to act dishonestly. In particular, it focuses upon the role of rationalisations in encouraging a pragmatic approach to clients' dishonest acts, especially in the context of the complexities and ambiguities of commercial legal practice. In the continuing absence of a national regulatory scheme governing the legal profession in Australia, the thesis focuses upon the disciplinary system operating in New South Wales and undertakes a theoretical inquiry into the importance of regulating lawyer dishonesty and an empirical study of NSW disciplinary cases to understand how lawyer dishonesty is dealt with by the professional and regulatory bodies in that state. It shows that significant gaps exist in the current regulatory scheme, particularly in the context of "who" disciplinary actions are brought against, "what" misconduct actions are for and "how" practitioners are dealt with. It argues that these gaps undermine the legitimacy of the regulatory anddisciplinary systems, which have as their goal providing a consistent scheme for the regulation of lawyers and the enforcement of standards of competence and honesty across the legal professlon. Finally, the thesis considers whether the regulatory regime governing professional misconduct in NSW can be effectively used to improve the standard of large firm lawyer honesty. It argues "yes" and suggests that three regulatory responses are required: firstly, normative issues need to remain at the centre of the regulation of professional misconduct; secondly, all law firms should be subject to the requirement to implement appropriate management systems and finally, specific provisions should be introduced to impose liability on large firm lawyers who assist their clients to act dishonestly.
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Roberts, Heather Jan. "'Fundamental constitutional truths' : the constitutional jurisprudence of Justice Deane, 1982-1995." Phd thesis, 2007. http://hdl.handle.net/1885/109952.

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Justice Deane was a member of the High Court from 1982 until 1995. This thesis examines Deane's constitutional jurisprudence during this period and argues that his decisions were permeated by themes and principles forming a coherent vision of the Constitution and its interpretation. Although voiced most fully in Theophanous v Herald and Weekly Times (1994) 182 CLR 104, Deane's constitutional vision was evident from his earliest High Court decisions. Central to Deane's constitutional philosophy was his concept of 'the people'. Deane regarded 'the people' as the source of legal authority of the Constitution, and the Constitution as ultimately concerned with their governance and protection. Although Deane recognised the importance of representative democracy as a fundamental commitment of the Constitution, it was the Court, and judicial process, that for Deane was the most important guarantee of individual liberty. Consistent with this understanding of the role of the Court, Deane's jurisprudence favoured rights-sensitive interpretations of the Constitution's text, including the development of a number of innovative, and controversial, implied constitutional rights. These features of Deane's constitutional jurisprudence, matched with his reliance on broad and flexible interpretive principles in constitutional interpretation, challenged orthodox assumptions of the legitimate limits on judicial review in the Australian constitutional system. In the years since Deane's departure from the Court the concept of 'the people' as the source of the Constitution's authority has gained wide acceptance. Few have also accepted Deane's bold vision of the Court's duty to protect the fundamental rights of 'the people' from legislative interference. Until this aspect of Deane's constitutional vision is adopted, some of his more controversial interpretations of the Constitution are unlikely to gain the acceptance of a majority of the Court. However, much of Deane's jurisprudence displays his reliance on his distinctive concept of 'the people' to support the application of both established principles of constitutional interpretation and a number of innovative interpretive principles to derive moderate conclusions on the meaning and effect of the Constitution. For this reason, Deane's jurisprudence contains many fresh and compelling answers to questions regarding the meaning of the Constitution in contemporary Australia.
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Neville, Warwick John. "Healing the nation : access to medicines under the Pharmaceutical Benefits Scheme - the jurisprudence from history." Phd thesis, 2007. http://hdl.handle.net/1885/150188.

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Ward, Helen 1963. "The "adequacy of their attention": gender-bias & the introductory law course in Australian law schools." 1999. http://web4.library.adelaide.edu.au/theses/09LM/09lmw258.pdf.

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Includes bibliographical references (leaves 220-229) Considers to what extent feminist theoretical and critical perspectives have been incorporated into law. A law course or law textbook that uncritically presents legal doctrines, or representations of men's and women's social roles, risks adopting and perpetuating the unstated point-of-view of a particular cultural group in society. Argues for a legal education that has an open self-consciousness of the culturally specific and inevitably partial point-of-view of the law and, consequently, a conscious recognition of the unavoidable point-of-view of legal education.
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Anker, Kirsten, and kirsten anker@mcgill ca. "The unofficial law of native title: indigenous rights, state recognition and legal pluralism in Australia." 2007. http://hdl.handle.net/2123/2294.

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Doctor of Philosophy (PhD)
The official version of law in Australia is that the state has a monopoly over sovereignty: there is only one Australian law whose meaning is determined by the courts. However, the courts have implied that there is another law, the law of Indigenous peoples which exists as a social fact. It can be recognised by the state for particular purposes, such as the protection of the ‘native title’ of Aboriginal peoples and Torres Strait Islanders to their traditional countries. Native title is characterised as the translation of a primarily spiritual connection to land into proprietary rights and interests, requiring proof of the connection that a particular Indigenous society has under traditional laws and customs continuously acknowledged since Britain claimed sovereignty. Given the special nature of native title, the preference is to recognise title by negotiated agreement. This thesis undertakes a study of some of the assumptions and inconsistencies on which the recognition of native title – and this ‘not quite’ legal pluralism – rests. It questions law’s relation to fact, time, space, identity, language and practice as these are deployed in calibrating Indigenous peoples’ claims, and so reaches across disciplines to History (questioning the knowable past), Philosophy (the notion of recognition), Legal Theory (the concept of law as rules and the separation between law and fact), Anthropology and Literary Studies (the possibility of translation), Aesthetics (the rationality of proof), and Geography (the alternative space of negotiation). In looking closely at the practical and discursive process of making a claim, an account of native title can be given that refuses the cogency of the monopoly of sovereignty, and envisages instead a multi-faceted phenomenon that is the ‘unofficial’ law of native title. Native title is a set of practices which stimulate new articulations of Indigenous law and settler law and put them in relation with one another: the process of recognition is also a creative process of transformation.
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Smith, Marcus. "Universal law and genetic : the future development of DNA evidence in the Australian criminal justice system." Phd thesis, 2010. http://hdl.handle.net/1885/148373.

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Books on the topic "Insanity (Law) Jurisprudence Australia"

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Malhotra, Monika. Criminal jurisprudence and law of insanity. New Delhi: Deep & Deep Publications, 1988.

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Browne, John Hutton Balfour. The medical jurisprudence of insanity. 2nd ed. Clark, N.J: Lawbook Exchange, 2003.

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Winick, Bruce J. Therapeutic jurisprudence applied: Essays on mental health law. Durham, N.C: Carolina Academic Press, 1997.

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Joseph, Philip. Psychiatric assessment at the Magistrates' Court: A report commissioned by the Home Office. London: Published jointly by the Home Office and the Department of Health, 1992.

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Awasthi, Shailendra Kumar. Rights of unsoundmind accused. 2nd ed. Pune: CTJ Publications, 2000.

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Grassi, Leonardo. Infermità di mente e disagio psichico nel sistema penale. Padova: CEDAM, 2003.

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The jury & the defense of insanity. New Brunswick, N.J: Transaction Publishers, 1999.

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Therapeutic jurisprudence: The law as a therapeutic agent. Durham, N.C: Carolina Academic Press, 1990.

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W, Scheflin Alan, ed. Law and mental disorder. Durham, N.C: Carolina Academic Press, 1998.

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Molly, Cheang, and Chee Kuan Tsee, eds. Mental disorders and the law. Singapore: Singapore University Press, National University of Singapore, 1994.

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Book chapters on the topic "Insanity (Law) Jurisprudence Australia"

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Bruce, Alex. "Present & Future Jurisprudence of Consumer Protection and Food Law in Australia." In International Food Law and Policy, 971–1000. Cham: Springer International Publishing, 2016. http://dx.doi.org/10.1007/978-3-319-07542-6_40.

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Hill, Lisa, Max Douglass, and Ravi Baltutis. "Why Australia Is a Great Place to Start: The Implied Freedom of Political Communication and TIPA Laws." In How and Why to Regulate False Political Advertising in Australia, 45–56. Singapore: Springer Nature Singapore, 2022. http://dx.doi.org/10.1007/978-981-19-2123-0_5.

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AbstractIn this chapter we show that the Australian constitutional and jurisprudential approach to political speech, as embodied in the implied freedom of political communication, makes Australia a uniquely congenial setting for TIPA laws and the type of burden they place on political speech. This is reflected in a range of High Court decisions as well as the fact that the Supreme Court of South Australia has upheld the constitutionality of the South Australian TIPA law based on Australian implied freedom of communication jurisprudence. Our exploration of these decisions and their broader context throws light on how such a freedom is supposed to work and is constituted. Notably, the Courts have achieved a balance in the ‘freedom-fairness’ trade-off, and indicated that they consider TIPA laws, in constraining some political speech, as tipping the scales towards ‘fairness’ without at the same time unduly impacting freedom. We end the chapter by summarising our argument so far.
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Freckelton, Ian. "The Insanity Defence under Australian Law." In The Insanity Defence, 170—C8.N144. Oxford University PressOxford, 2022. http://dx.doi.org/10.1093/oso/9780198854944.003.0008.

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Abstract While Australia inherited its law on the defence of insanity from England, it has evolved extensively through serial legislative reforms. The law is now significantly disuniform among Australia’s federal, state, and territory jurisdictions in terms of the nomenclature of the defence, criteria for its invocation, and the bases upon which persons found not guilty are dealt with upon a finding of insanity, mental impairment, mental incompetence, or unsoundness of mind. While in most jurisdictions detention is no longer at the Governor’s pleasure, there is diversity in respect of which bodies have an ongoing decision-making role for permitting reintegration of the person who has been forensically detained after a finding of mental illness, and the criteria on the basis of which the release discretion should be exercised. However, considerable jurisprudence has evolved which is distinctive to Australia, especially as to the key predictive criteria. There has also been a succession of law reform inquiries, and controversies remain lively in relation to matters such as whether there should be a volitional component to the defence, how the criteria should be formulated, and whether courts or specialist tribunals should have responsibility for the difficult predictive exercise of determining when it is safe to release from detention a person who has been found not guilty of a serious crime by reason of the defence.
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"Chapter 2. The Medical Jurisprudence of Insanity." In Law and the Modern Mind, 59–86. Harvard University Press, 2016. http://dx.doi.org/10.4159/9780674495517-003.

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"Australia Measures Affecting Importation of Salmon." In La jurisprudence de l'OMC / The Case-Law of the WTO, 1998-2, e152-f184. Brill | Nijhoff, 2006. http://dx.doi.org/10.1163/ej.9789004151529.i-f225.37.

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Patrick, Emerton. "Part I Foundations, Ch.6 Ideas." In The Oxford Handbook of the Australian Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198738435.003.0007.

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This chapter sets out some key political ideas that underpin the Australian Constitution. Australia has a somewhat distinctive constitutional culture. It has a rigid, written Constitution of long standing and that is frequently litigated. As a result, there is a flourishing constitutional jurisprudence. However, with a handful of exceptions, the Constitution, and ideas around constitutional values or ideals, play relatively little role in Australian public and political debate. This has generated a sense of the Constitution itself as a prosaic, even arid, legal text. This chapter presents a counterpoint to such perceptions. It also shows how a technical document that has operated within, and to some extent strengthened, a legalistic constitutional jurisprudence, can be understood to be a source of affirmative constitutional value to which that jurisprudence gives genuine expression.
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Michael, Crommelin. "Part VI Federalism, Ch.35 The Federal Principle." In The Oxford Handbook of the Australian Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198738435.003.0036.

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This chapter seeks to determine the content of the federal principle in Australia from the historical context of the Constitution, the text and structure of the Constitution, and the jurisprudence of the High Court of Australia. The federal principle is a foundational element of the Constitution, along with representative democracy, responsible government, separation of judicial power, and the rule of law. The Commonwealth of Australia Constitution Act 1900 (UK) provided for the people of the six Australian colonies to be united in ‘a Federal Commonwealth under the name of the Commonwealth of Australia’, a self-governing polity within the British Empire. Hence, the chapter reveals three core ingredients of the federal principle: multiple polities, limited authority of polities, and reciprocal responsibility among polities. These ingredients are tightly intertwined.
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Michelle, Foster. "Part V Separation of Powers, Ch.28 The Separation of Judicial Power." In The Oxford Handbook of the Australian Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198738435.003.0029.

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This chapter discusses the separation of judicial power principle in Australia. First, it considers the history of the principle and whether it was intended or assumed by the Constitution's drafters. Next, the chapter examines the evolution of the principle in the High Court's jurisprudence, as well as its underlying rationales. Hereafter, this chapter considers the practical ramifications of the principle, and the methods and techniques adopted by the High Court to respond to some of its ‘inconvenient’ consequences. Finally, the chapter considers two of the core underlying rationales in the context of controversial issues in contemporary jurisprudence. It analyses the separation of judicial power principle and the protection of individual rights, in addition to the separation of judicial power principle and federalism. The chapter concludes by briefly commenting on likely future developments.
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Elisa, Arcioni. "Part III Themes, Ch.14 Citizenship." In The Oxford Handbook of the Australian Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198738435.003.0015.

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This chapter examines the uneasy relationship between the Australian Constitution and membership of the Australian polity. Unlike some constitutions, the Australian Constitution contains no mention of ‘citizenship’. Instead, formal membership of the Australian community is determined by reference to the constitutional categories of ‘subjects of the Queen’ and ‘people of the Commonwealth’ and through the legislative definition of citizenship under federal law. These peculiar features of the Australian context reflect what is generally assumed to be the modest role of the Constitution in determining national identity and the fact that Australia was not an independent nation at the time of the Constitution's drafting. Developments in legislation, constitutional jurisprudence, and mooted constitutional amendments all point towards a greater role for the Constitution in determining Australian ‘citizenship’ in the future.
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James, Stellios. "Part VI Federalism, Ch.36 Federal Jurisdiction." In The Oxford Handbook of the Australian Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198738435.003.0037.

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This chapter identifies the origins, content, and operation of federal jurisdiction in Australia. In the United States the creation of federal jurisdiction was the necessary concomitant of the establishment of the judicial arm of federal government. The same could not be said of the conditions for Australian federalism. Federalism Australian-style did not require a federal system of courts. Further complicating the issue was the ‘autochthonous expedient’: the facility provided to Parliament for the use of State courts to exercise federal jurisdiction. Hence the chapter also seeks to suggest that the discordance between the concept and purpose of federal jurisdiction left the High Court with the challenging task of conceptualizing ‘judicial federalism’. In executing that task, High Court jurisprudence has presented differing conceptions of the place of State courts within the federal judicial system.
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