Open Constitutional Courts

Front Cover
Federation Press, 2010 - Law - 175 pages
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What happens if you need to mount a constitutional challenge and you don‚e(tm)t have any money or standing to sue? Despite the grand-sounding notion of ‚e~the constitutional guarantee of judicial review‚e(tm) the obstacles to access to constitutional justice are real, and have impeded the objectives of marginalised people and groups in society. In this book, Patrick Keyzer reviews the rules governing access to constitutional justice in Australia in light of the philosophies of identity developed by Anthony Kwame Appiah and Charles Taylor and the philosophy of democratic processes favoured by Jurgen Habermas and John Stuart Mill. He develops a new theory to replace the private law paradigm of litigation, providing a foundation for the achievement of the objectives of equal respect and equal dignity within Australian constitutional law. Keyzer argues that an application for the judicial review of legislative action should be characterised as an exercise of political free speech, and that the rules governing standing and costs are incompatible with that freedom and should be abolished in constitutional cases. He demonstrates that the constitutional guarantee of judicial review gives rise to a right to know whether a law is constitutionally valid, providing a further rationale for open access. Such open access would supply our constitutional courts with a wider normative horizon, and lend legitimacy to judicial review and its outcomes.

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Contents

Rules restricting access to constitutional justice
27
Access rules and exclusion on the ground of identity
46
Representation of the public interest by AttorneysGeneral
76
Can amici curiae improve access to constitutional justice?
98
Theorising open constitutional courts in Australia
123
Procedures in an open constitutional court
152
Why we should have open constitutional courts
164
Index
171
Copyright

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