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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.

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Title Facts, threats and reds : common law constitutionalism and the rule of law
Author(s) Morss, John
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
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
Persistent URL http://hdl.handle.net/10536/DRO/DU:30023772

Document type: Journal Article
Collections: Faculty of Business and Law
School of Law
Higher Education Research Group
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