The use of American precedent in Australian constitutional jurisprudence

At the heart of this thesis is the claim that a renewed and deeper form of engagement with American precedent by the High Court of Australia (HCA) could beneficially contribute to the ongoing doctrinal development of Australian constitutional jurisprudence. Useful concepts derived from United States (US) Supreme Court (USSC) case law have been under-explored to date, and an increased willingness to draw upon US constitutional experience (including ‘thick’, empirically-informed doctrinal insights) could offer the HCA a rich repository of ideas and lessons. Underpinning this argument is the idea that comparative constitutional analysis can (and should) be a critical endeavour – one that involves processes of adaptation, along with the possibility of both positive and negative lessons. Importantly, the thesis does not endorse a uniform or uncritical 'transplantation' of US legal rules into Australian constitutional jurisprudence. Under the comparative doctrinal methodology that is proposed, it is entirely appropriate (and indeed, a relatively orthodox exercise) for the HCA to adopt a critical and cautious approach when assessing the utility of US insights. Further, 'borrowing' in a way that is sensitive to the local Australian constitutional context might involve the adaptation of a doctrine or framework that has foreign origins. But operating within these parameters, it is argued that important and relevant doctrinal insights informed by US constitutional experience could be gained that have been over-looked in the HCA to date. Invoking this approach, the thesis develops an account of the ways in which a renewed and deeper form of engagement with legal doctrines developed by the USSC could usefully be employed by the HCA in two illustrative areas of Australian constitutional jurisprudence: (1) the implied freedom of political communication; and (2) the federal power to legislate with respect to interstate trade and commerce conferred under s 51(i). Ultimately, the thesis aims to prompt consideration of future possibilities for constructive engagement with other areas of US constitutional law, along with the benefits of comparative constitutional inquiry more generally.