Dyson Heydon in the
Thomas vs Mowbray decision writes on the
doctrine of Judicial Review. This is where the court has the authority and sovereignty over determining if a statute is unconstitutional. The competing doctrine, which
is conservative view of the dominant executive, is that the executive by forming government has popular sovereignty which trumps the doctrine of judicial review when the executive is acting in national security or national interest.
Constitutionalism in liberal democracy is based on limited government where the constitution defines the boundaries of government authority and action. For republicanism and liberalism to be healthy the judicial cannot have its sovereignty on judicial review revoked by executive action. Fundamental law (the constitution) must be dominant over popular sovereignty (parliament).
Heydon writes:
Another explanation is that the Court has an overriding duty to enforce the Constitution for all citizens or residents which it must fulfil even if the limited class of citizens or residents who comprise the parties before it will not adequately assist it to do so. From the earliest times this Court has seen itself as having, in general, a duty to determine the validity, one way or the other, of legislation alleged to be unconstitutional.
It is a duty which not even statute can interfere with, "because under the rigid federal Constitution of the Commonwealth a provision is not valid if it would operate to withdraw from the courts of law, and so ultimately from this Court, the decision of any question as to the consistency of a statute or an executive act with the Constitution".
Putting to one side the political consequences of a legislature embarking on the enactment of unconstitutional legislation, there is no body other than the judiciary capable of preventing an abuse of legislative power. These factors are seen as outweighing the difficulty of finding the facts relevant to validity.
He is arguing that for the court to fulfil the doctrine of judicial review then facts in the case can be wider in scope than that brought directly to the case if it is needed to determine the constitutionality of the statute.
Since this Court has ultimate responsibility for the enforcement of the Constitution, it has ultimate responsibility for the resolution of challenges to the constitutional validity of legislation, one way or the other, and cannot allow the validity of challenged statutes to remain in limbo.
It therefore has the ultimate responsibility for the determination of constitutional facts which are crucial to validity. That determination "is a central concern of the exercise of the judicial power of the Commonwealth".
This principle of necessity - that constitutional facts must be investigated by this Court if it is to fulfil its duty to conduct judicial review of the constitutional validity of legislation - also accounts for the width of the principles pursuant to which it finds constitutional facts.
Heydon is arguing that the purpose of the court is to determine constitutionality first and foremost. As a result the facts in a case can be expanded, if need be, in order to determine if a statute is constitutional or not. Otherwise the High Court is failing its duty under limited government.
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