Melbourne Law School - Research Publications

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Author: Stone, Adrienne × Start date: 2000 × Type: Journal Article ×

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    Before the High Court: Abortion Protests and the Limits of Freedom of Political Communication: Clubb v Edwards; Preston v Avery
    Morris, S ; Stone, A (Sydney Law School, 2018)
    Two cases currently before the High Court of Australia — Clubb v Edwards and Preston v Avery — raise the validity of state laws that seek to prohibit certain communication and protest outside abortion clinics. The laws are justified on the basis that they protect the ‘safety’, ‘dignity’, ‘well-being’ and ‘privacy’ of those seeking abortion services. The cases therefore pose the question of how these values are accommodated within the Australian system of representative and responsible government.
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    Australia: Freedom of speech and insult in the High Court of Australia
    Stone, A ; Evans, S (OXFORD UNIV PRESS, 2006-10)
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    DEMOCRATIC OBJECTIONS TO STRUCTURAL JUDICIAL REVIEW AND THE JUDICIAL ROLE IN CONSTITUTIONAL LAW
    Stone, A (UNIV TORONTO PRESS INC, 2010-01-01)
    This article revisits my argument that structural judicial review – judicial review of those provisions of a constitution that establish the basic structure of government and divide power between the constituent parts of a federation – is vulnerable to the objection from democracy and defends that claim against arguments made by Jeffrey Goldsworthy and others. First, I deny that the democratic objection to judicial review can, by virtue of its commitment to respect for rights, be wielded only against rights review: on the contrary, I argue, it applies where judges have the power to interpret and enforce constitutional provisions or principles that are uncertain in their scope and which therefore require judges to make evaluative judgments in the face of reasonable disagreement. Structural judicial review routinely involves judges’ making, or reaffirming, choices of just this kind. Second, I deny that federal judicial review is immune from the objection either because it constitutes only a weak form of judicial review or because judicial review is a necessary attendant of federalism: on the contrary, federal judicial review requires judges to choose between contested conceptions of federalism in a manner not susceptible to legislative revision. In addition, I argue, there are institutional structures that would allow for the resolution of federal disputes without begging the question at the heart of federalism. Finally, I deny that judicial review of legislative procedures, of requirements establishing an independent judiciary, or of federal anti-discrimination norms (categories identified by Goldsworthy) create practically significant exceptions to my claim.
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