The constitution, federalism and the High Court

Alphonse Gerard de Kluyver

    Research output: ThesisDoctoral Thesis

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    [Truncated] In the first chapter of The Constitution, Federalism and the High Court, the argument is developed that constitutional law cannot be understood or applied in isolation from the foundational principles of the political system which it is designed to structure and maintain and in which it is generated. Even in constitutional systems like the British, where law is theorised as analytically distinct from political principle, the practice of law reproduces and gives effect to the political values which underlie the system of government. In chapters 2 - 4, the federal theory underlying the Australian Constitution is examined in the context of the framers' understanding of what they were seeking to achieve in drafting the Constitution and the constitutional role they expected the High Court would perform. The conventional understanding of the Constitution is that it is informed by a dual constitutional heritage represented by American federalism and the British parliamentary tradition. The argument is advanced that the Constitution is also informed by an indigenous colonial tradition of government through which American federalism and the British parliamentary tradition were mediated and understood. Furthermore, the colonial and American traditions reinforced each other in the process, as made manifest in the federal theory which is the foundation of the Constitution, and under which the British parliamentary tradition is subsumed. Within this framework, the High Court's primary constitutional role is to give enduring effect to the federal principles underlying the Constitution.
    Original languageEnglish
    QualificationDoctor of Philosophy
    Awarding Institution
    • The University of Western Australia
    Publication statusUnpublished - 2002

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