- The Oxford Handbook of the Australian Constitution
- Table of Cases
- Table of Legislation
- List of Abbreviations
- List of Contributors
- First Peoples
- Rule of Law
- Common Law
- Unwritten Rules
- International Law
- Comparative Constitutional Law
- State Constitutions
- Australia in the International Order
- Authority of the High Court of Australia
- Judicial Reasoning
- Standards of Review in Constitutional Review of Legislation
- Techniques of Adjudication
- Separation of Legislative and Executive Power
- The Judicature
- The Separation of Judicial Power
- The Constitutionalization of Administrative Law
- Co-Operative Federalism
- The Passage Towards Economic Union in Australia’s Federation
- The Federal Principle
- Federal Jurisdiction
- Rights Protection in Australia
- Due Process
- Political Participation
Abstract and Keywords
This chapter points out the orthodoxy in Australia of consulting foreign law as an ordinary part of the interpretation and application of ‘constitutional provisions with a common genetic or genealogical root’. Australian constitutional experience has demonstrated for more than a century how comparative constitutional analysis can illuminate the resolution of constitutional issues arising within a domestic legal system. In its exposition and development, no less than in its inspiration, Australian constitutional law has benefited from the consideration of foreign precedent. Constitutional ideas which have found expression in foreign judicial pronouncements have been appropriated and adapted when found to shed light on domestic constitutional issues, and discarded when not. That approach to the evaluation and utilization of foreign constitutional precedent has been nothing more than an aspect of the application of common law methodology to constitutional interpretation.
Keywords: comparative analysis, comparative constitutional law, foreign law, constitutional issues, domestic legal system, Australian constitutional law, foreign precedent, foreign judicial pronouncements, constitutional interpretation
Stephen Gageler is a Justice of the High Court of Australia.
Will Bateman is a doctoral candidate at the University of Cambridge.
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