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The High Court and Constitutional Identity – the 2019/2020 term

What do we learn about Australian Constitutional Identity from the Australian High Court? This paper teases out three elements of Australian constitutional law seen in the decisions of 2019 that tell us something about who we are, how we distinguish the role of our High Court from what other institutions of power do within our system and what we value under the Constitution. Specifically, who are ‘the people’ under the Constitution and how does the Court understand that concept of ‘the people’; how does the Court explain its distinct role under the Constitution and the distinction between the courts and the political branches of government and what values affect the reasoning of the Court? Finally, this paper focuses on the controversial decision of Love decided in February 2020 to explain the deep divides between the majority and dissenting reasons, which map onto the issues found in the 2019 cases and which indicate constitutional values that are as yet unsettled.