The Remaking of the Courts Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia

The Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia centres on the changing nature of courts within the Australian constitutional context. In essence, the monograph explores the degree to which less-adversarial innovations and the remodelling of the judicial role can be accommodated within Australia’s constitutional framework.

The work draws upon comparative principles, separation of powers jurisprudence and the theoretical perspectives of constitutionalism and neo-institutionalism. By examining Chapter III of the Commonwealth Constitution, and applying Chapter III approaches to less-adversarial case-studies traversing state and federal fields, the book argues that less-adversarial judicial practices can be broadly accommodated by the Australian constitutional framework. However, the book asserts that the clarity and suitability of the Chapter III constitutional approaches employed would be significantly improved by the adoption of a ‘contextual incompatibility’ methodology which would protect the constitutional role of the courts while not forestalling constitutionally compatible reform.

1. The Context of Judicial Change and Less-Adversarial Practice  2. Neo-institutionalism, Constitutionalism and the Nature of Institutional Change  3. Constitutional Foundations and Chapter III Precepts  4. Judicial Case Management and the Commonwealth Constitution  5. The Constitutionality of Judicial Mediation  6. Australian Drug Courts and their Constitutional Treatment  7. Chapter III and Constitutional Reform  8. Contextual Incompatibility – A New Approach

Dr Sarah Murray is an Associate Professor at the University of Western Australia where she teaches Constitutional Law and researches in the areas of Public Law and legal institutional change. Her PhD thesis was awarded the 2011 Mollie Holman Doctoral Medal for Law by Monash University. She is the Western Australian Convenor and a co-opted Council Member of the Australian Association of Constitutional Law and a Western Australian Convenor of the Electoral Regulation Research Network.

Sarah has published widely, including being the editor of Constitutional Perspectives on an Australian Republic - Essays in Honour of Professor George Winterton (Federation Press, 2010). She is a chapter contributor to the recent Federation Press publication, Tomorrow’s Federation (Federation Press, 2012) and is also a co-author in the latest edition of Winterton’s Australian Federal Constitutional Law: Commentary & Materials (Thomson Reuters, 2013).