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The Australian National University

Judicial Review of Legislators' Motives

10.22145/flr.45.4.9
Nathan Van Wees (2017) 45 (4)

Are legislators’ subjective motives relevant to the constitutional validity of an Act? In the USA, an Act may be found to be unconstitutional because legislators were motivated by a desire to discriminate against religion or interstate trade. The High Court has rejected such an enquiry in cases concerning ss 92 and 116 of our own Constitution. This article examines how, with substantially similar constitutional protections, the courts of these two countries have arrived at opposing views on the relevance of ‘motive evidence’. The High Court can avoid recourse to motive evidence because, when compared with its US counterpart, it applies a clearer test in the religion cases, and a more nuanced approach to proportionality testing in the interstate trade cases. This is the preferable approach.

Vol 45, Issue 4, 2017

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Updated:  19 May 2017/Responsible Officer:  FLR Business Managers/Page Contact:  FLR Web Publishers