My immediate predecessor in this role was Justice French whose address on the topic of the Federal and State Courts on Constitutional Law dealing with the 2002 Term was gloomily entitled “Dark Matter in the Constitutional Universe”. By this, his Honour intended to refer to the fact that, to use his Honour’s expression, “in the constitutional cosmos it is the jurisprudence of the High Court that illuminates or bedazzles us” but “the constitutional decisions of the Federal and State Courts tend to fall into the category of dark matter or, perhaps at best brown dwarfs”.
I do not share his Honour’s gloom. First, not all Federal or State Court decisions dealing with the Constitution cower under the damoclean sword of a successful special leave application or a s 40 removal. Many clearly dazzle in their own right (and perhaps light). Secondly, while some such cases do end up in the High Court so that, to that extent, the Federal and State Court decisions might be seen as “unfinished matters”, no-one doubts the utility of the intermediate decisions which, to quote Justice French again, “will settle the factual aspects of the case, dispose of lesser issues and sharpen the focus of interpretational choices that have to be made.”
Indeed French J shook off his gloom to a certain extent by asking rhetorically “where would we be without” such decisions. As he said, “most of the important constitutional law of Australia originates in proceedings in the lower courts.” This is demonstrated by the range of cases decided by the Federal and State courts in the 2003 term.
Date of this Version
Ruth McColl, "Unfinished Matters: The Federal and State Supreme Courts on Constitutional Law: The 2003 Term" (October 2011). University of New South Wales Faculty of Law Research Series 2011. Working Paper 48.