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Sometimes a group is rich enough and philanthropic enough to fund a constitutional challenge to a piece of legislation. GetUp's victory in the High Court of Australia in August 2010 is an example - and as a result nearly 60,000 Australians were enfranchised to vote in the general election later that month.
Often, however, a challenger doesn’t have a wealthy backer and takes a huge risk in mounting the action. Would the Commonwealth cede standing? Would it waive its costs if the challenger lost?
Patrick Keyzer’s book is a powerful argument the constitututional justice requires the removal of this political, lottery element from a legitimate constitutional challenge. The private law paradigm of litigation, he says, is inappropriate in constitutional cases.
Keyzer argues that an application for the judicial review of legislative action should be characterised as an exercise of political free speech, and that the rules governing standing and costs are incompatible with that freedom and should be abolished in constitutional cases.
He demonstrates that the constitutional guarantee of judicial review gives rise to a right to know whether a law is constitutionally valid, providing a further rationale for open access. Such open access would supply our constitutional courts with a wider normative horizon, and lend legitimacy to judicial review and its outcomes.