The changing character of judicial review in Australia: The legacy of Marbury v Madison?

Judicial review of legislation has been an "axiomatic" characteristic of Australian federalism from the beginning. The standard narrative is that the legitimacy of judicial review was established single-handedly by Marshall CJ in Marbury v Madison (1803) and uncritically accepted by the framers of the Australian Constitution. According to this narrative, the High Court has exercised the power of judicial review in a consistent manner since Federation. The standard narrative is dubious in a number of respects. Marbury v Madison was not necessarily central to the acceptance of judicial review in the United States and, in any event, Marshall's reasoning is flawed. Judicial review in Australia owes less to American constitutional doctrine than to the power of courts to invalidate colonial legislation held to be inconsistent with imperial statutes. The expansion of judicial review, particularly in recent times, has taken the institution well beyond its original rationale and altered the balance between the courts and Parliaments. A re-evaluation of judicial review as a counter-majoritarian force in Australian constitutionalism is overdue.