A Comparatively Paradoxical View on Australian Constitutional Formalism

Monday, 28 March, 2022 - 13:30 to 14:30

A Comparatively Paradoxical View on Australian Constitutional Formalism


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 subjects.  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 in 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.




Professor Stephen F Ross is the Lewis H Vovakis Distinguished Faculty Scholar and Professor of Law at Pennsylvania State University. His areas of expertise include Comparative Constitutional Law and Statutory Interpretation. He clerked for Hon. Ruth Bader Ginsburg in her first year on the U.S. Court of Appeals for the D. C. Circuit, served as minority counsel for the Committee on the Judiciary of the U.S. Senate, and worked as an attorney for the Federal Trade Commission and the U.S. Department of Justice. He has co-authored casebooks Comparative Constitutional Law (including “Comparative Constitutional Law: A contextual approach”, with Helen Irving and Heinz Klug) and has served as a visiting professor at a number of Canadian, English and Australian universities.


We are thrilled that Professor Ross is able to join us in Brisbane while he is in Australia.




Sandy Thompson QC SG is the Solicitor-General for Queensland. Sandy was called to the bar in 1983, and took silk in 1998. He has a broad-ranging private practice as well as significant expertise in public law, including constitutional law.  Sandy regularly appears in the High Court of Australia.




Date: Monday 28 March 2022

Time: 12.30pm (Bris time); 1.30pm (Melb/Sydney time)


Online and

In person:  Gibbs Room, Bar Association of Queensland, Ground Floor Inns of Court, 107 North Quay


To attend either in person or online, please register via Eventbrite here: Eventbrite Registration.  By registering you will obtain a link for the online event. However, everyone in Brisbane is encouraged to attend the in-person event.


We hope to see you there. Attendance is of course free - please share this invitation with your networks.