Prof Stephen Ross from Penn State University, who studies comparative constitutional law with particular focus on Canada and Australia, will offer an early-stage work-in-progress on formalist reasoning in Australian constitutional judgments. He describes the widespread American view that formalism – primarily in private law -- was a mask for judicial views on morality, policy, and human experience that did not conform to widely accepted views on those subject. Modern day “common law reasoning” instead focuses on widespread moral principles, a sense of policies good for the community, and perceptions of current-day experience, balanced explicitly with concerns about stability, reliance, and rule of law. This sort of reasoning applies to most aspects of American constitutional law as well.

The paradox is that the HCA engages is the sort of rhetoric now rejected in the US, but does so in the service of doctrine that does not mask antiquated or retrograde views, but rather defensible and plausible reasoning about modern Australia. Ross will briefly (and tentatively) review Australian doctrine in several areas, and note the HCA’s explicit rejection of formalist reasoning when it is clear that the result is inapt for Australia (most notably s 92 and the IFPC). The talk will conclude with an engagement with the audience on what to a foreigner is the puzzling view that masking defensible practices in easily deconstructed formal reasoning is seen as more legitimate than transparency.