CONSTITUTIONAL CHARACTERISATION: EMBEDDING VALUE JUDGEMENTS ABOUT THE RELATIONSHIP BETWEEN THE LEGISLATURE AND THE JUDICIARY

This article considers the process of characterising a Commonwealth law with respect to a federal head of power, organising the enquiry into three distinct steps of determining the essential character of a power, the definitional character of a power and the telescopic character of a power. The article then contends that this constitutional schema of characterisation disguises judicial value judgements about the proper scope of judicial review. The article concludes by reflecting on the application of this schema to the High Court's decisions in Spence v Queensland (2019) 268 CLR 355 and Love v Commonwealth (2020) 375 ALR 597.