Monash University

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Less-adversarial practice & the constitutional role of the judiciary in Australia

posted on 2017-03-22, 01:50 authored by Murray, Sarah Louise
This thesis explores the degree to which less-adversarial innovations within Australian courts can be accommodated by Chapter III of the Commonwealth Constitution. Less-adversarial reforms, being those which depart from an ‘adversarial’ approach, are increasingly reforming the role of Australian state and federal judges. Hence, it is important that curial changes are undertaken with an understanding of what constitutional boundaries exist and the extent to which these limit institutional change. By examining the Chapter III constitutional approaches and applying these approaches to three less-adversarial case-studies, which traverse state and federal fields, the thesis argues that less-adversarial judicial practices can be broadly accommodated by the Australian constitutional framework. However, the thesis concludes that the clarity and suitability of the Chapter III constitutional approaches employed would be significantly improved by the adoption of a ‘contextual incompatibility’ methodology. Drawing from the separation of powers jurisprudence and theoretical perspectives of constitutionalism and neo-institutionalism, a contextual incompatibility approach would provide a multifactorial test to better assess whether a less-adversarial function is incompatible with the role of a ‘court’ within a particularized setting. In doing so, it would provide flexible but workable benchmarks to protect the constitutional role of the courts while not forestalling constitutionally compatible reform. Awards: Winner of the Mollie Holman Doctoral Medal for Excellence, Faculty of Law, 2011.


Campus location


Principal supervisor

Arie Freiberg

Additional supervisor 1

Becky Batagol

Additional supervisor 2

Jeff Goldsworthy

Year of Award


Department, School or Centre



Doctor of Philosophy

Degree Type



Faculty of Law

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