Facts, threats and reds : common law constitutionalism and the rule of law Morss, John 2009, Facts, threats and reds : common law constitutionalism and the rule of law, Deakin law review, vol. 14, no. 1, pp. 79-98, doi: 10.21153/dlr2009vol14no1art132. Attached Files Name Description MIMEType Size Downloads Title Facts, threats and reds : common law constitutionalism and the rule of law Author(s) Morss, John orcid.org/0000-0002-0925-2525 Journal name Deakin law review Volume number 14 Issue number 1 Start page 79 End page 98 Total pages 20 Publisher Deakin University Place of publication Burwood, Vic. Publication date 2009 ISSN 1321-3660 Summary In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere. Language eng DOI 10.21153/dlr2009vol14no1art132 Indigenous content off Field of Research 180122 Legal Theory, Jurisprudence and Legal Interpretation Socio Economic Objective 940406 Legal Processes HERDC Research category C1 Refereed article in a scholarly journal Free to Read? Yes Persistent URL http://hdl.handle.net/10536/DRO/DU:30023772 Document type: Journal Article Collections: Faculty of Arts and Education Faculty of Business and Law Law Higher Education Research Group Open Access Collection Related Links Link Description Link to full-text (open access)     Unless expressly stated otherwise, the copyright for items in DRO is owned by the author, with all rights reserved. Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au. Versions Version Filter Type Fri, 19 Feb 2010, 09:17:04 EST Mon, 22 Feb 2010, 10:29:03 EST Mon, 22 Feb 2010, 11:56:18 EST Mon, 22 Feb 2010, 11:58:10 EST Mon, 11 Jan 2021, 10:16:05 EST Filtered Full Citation counts:   Cited 1 times in TR Web of Science Cited 0 times in Scopus Search Google Scholar Access Statistics: 985 Abstract Views, 3 File Downloads  -  Detailed Statistics Created: Fri, 19 Feb 2010, 09:17:00 EST by Katrina Fleming

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