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Vol 21 No 11 Nov/Dec 2016

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The Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia

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ISBN13: 9781862879409
Published: March 2014
Publisher: The Federation Press
Country of Publication: Australia
Format: Hardback
Price: £60.00



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The Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia centres on the changing nature of courts within the Australian constitutional context. In essence, the monograph explores the degree to which less-adversarial innovations and the remodelling of the judicial role can be accommodated within Australia’s constitutional framework.

The work draws upon comparative principles, separation of powers jurisprudence and the theoretical perspectives of constitutionalism and neo-institutionalism. By examining Chapter III of the Commonwealth Constitution, and applying Chapter III approaches to less-adversarial case-studies traversing state and federal fields, the book argues that less-adversarial judicial practices can be broadly accommodated by the Australian constitutional framework. However, the book asserts that the clarity and suitability of the Chapter III constitutional approaches employed would be significantly improved by the adoption of a ‘contextual incompatibility’ methodology which would protect the constitutional role of the courts while not forestalling constitutionally compatible reform.

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Subjects:
Other Jurisdictions , Australia
Contents:
Acknowledgement
Table of Cases
Table of Legislation

Introduction

PART I
1. The Context of Judicial Change and Less-Adversarial Practice
2. Neo-institutionalism, Constitutionalism and the Nature of Institutional Change
3. Constitutional Foundations and Chapter III Precepts

PART II
4. Judicial Case Management and the Commonwealth Constitution
5. The Constitutionality of Judicial Mediation
6. Australian Drug Courts and their Constitutional Treatment

PART III
7. Chapter III and Constitutional Reform
8. Contextual Incompatibility – A New Approach

Conclusion

Bibliography
Appendix