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|dc.contributor.author||Hill, Martin Roland||-|
|dc.description.abstract||This thesis seeks to ascertain whether the rule of law limits the legislative power of State legislatures (a question posted in «em»Momcilovic v The Queen«/em» (2011) 245 CLR 1). It argues that the rule of law, understood as a legal principle, is not presently recognised as a constraint on the capacity of the New South Wales Legislature. It further argues that it is unlikely that the rule of law will be recognised as such a constraint.«br /» «br /» This thesis starts with consideration of the concept of the rule of law. It surveys conceptions of the rule of law that have informed Australian jurists and conceptions advanced by those jurists. It does so to show how theoretical conceptions have informed judicial consideration of the rule of law. It also surveys the aspects and requirements of the rule of law that have been recognised by the High Court of Australia. It demonstrates that those aspects correspond to the theoretical conceptions. It also distinguishes those aspects and requirements connected to legality from other identified aspects and requirements.«br /» «br /» This thesis then shows that the rule of law has not been recognised as a constraint on the power conferred on the New South Wales Legislature by the «em»Constitution Act 1902«/em» (NSW). It examines the constraints imposed by the «em»Constitution Act 1902«/em» and the «em»Commonwealth of Australia Constitution«/em».«br /» «br /» In light of the conclusion that the rule of law is not a recognised constraint, this thesis assesses whether the rule of law might be recognised as such a constraint. It evaluates the possibility that the «em»Commonwealth Constitution«/em» might provide a basis for the imposition of the rule of law. To do so, it considers Justice Dixon’s acknowledgement, in «em»Australian Communist Party v Commonwealth«/em» (1951) 83 CLR 1, that the rule of law is a traditional conception assumed by the «em»Commonwealth Constitution«/em». It also examines the relationship between the rule of law and Chapter III of the «em»Commonwealth Constitution«/em» and the implications that relationship might have for State legislatures. It shows that any constraint derived from Chapter III of the «em»Commonwealth Constitution«/em» is unlikely to extend beyond securing the legality of governmental action. This thesis also assesses whether the common law is capable of imposing the rule of law as a constraint on legislative capacity. It shows that such a constraint will be weak in the face of considered action by a State legislature. Ultimately, this thesis argues that the rule of law is only likely to be recognised as a constraint when a court is confronted with an extreme law.||en_AU|
|dc.publisher||University of Sydney||en_AU|
|dc.publisher||Sydney Law School||en_AU|
|dc.rights||The author retains copyright of this thesis. It may only be used for the purposes of research and study. It must not be used for any other purposes and may not be transmitted or shared with others without prior permission.||en_AU|
|dc.subject||New South Wales||en_AU|
|dc.title||The Momcilovic Question: Does the Rule of Law Limit the Capacity of the New South Wales Legislature?||en_AU|
|dc.type.pubtype||Master of Laws LL.M.||en_AU|
|Appears in Collections:||Sydney Digital Theses (Open Access)|
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|2018_Martin_Hill_thesis.pdf||Thesis||1.37 MB||Adobe PDF|
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