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JEREMY KIRK[*]
[This article, the second of a pair, considers the nature and merits of implied constitutional guarantees relating to legal equality and democracy. An argument is made that the putative implied guarantee of legal equality, suggested by Deane and Toohey JJ, is analytically plausible but ultimately unsustainable in light of the character of such a guarantee. In contrast, implied guarantees protecting the operation of the process of representative democracy are suggested to be well based. In arguing to this end, it is shown that the High Court’s attempt to limit constitutional implications to those arising from constitutional ‘text and structure’ is flawed, and that certain analytical criticisms of the democratic rights made by members of the Court were misconceived. The article also examines and rejects general arguments that implied constitutional rights must be dismissed because of the views of the framers of the Constitution.]
In Leeth v Commonwealth,[1] decided on 25 June 1992, Deane and Toohey JJ handed down one of the most radical judgments — both in reasoning and result — seen to date in Australian constitutional jurisprudence. They held, in dissent, that Commonwealth legislative powers are generally subject to an implied constitutional guarantee of legal equality, one of the most encompassing types of constitutional guarantee possible. Their method of implication relied on governmental doctrines and common law principles said to underlie the Constitution.
Three months after Leeth, in reasons handed down in Australian Capital Television Pty Ltd v Commonwealth [No 2][2] and Nationwide News Pty Ltd v Wills,[3] a majority of the High Court recognised an implied constitutional guarantee of freedom of communication on political and governmental matters. Put simply, this was based on the view that such freedom was essential to the operation of representative democracy (or representative government) and that the Constitution created and entrenched this form of government at a federal level in Australia. The precise reasoning of the judges varied. Notably, Deane and Toohey JJ employed much the same method of implication as they had in relation to their putative equality guarantee in Leeth. These founding decisions opened the way for the constitutional recognition of a range of other essential requirements of representative democracy.
The focus of this article, the second of a pair, is on the nature and merits of these two strands of the implied rights phenomenon, that is, the putative constitutional implications relating to legal equality and representative democracy. Although both strands have been the subject of much previous discussion,[4] the analysis here is conducted by reference to the particular examination of constitutional implications — their nature, forms, legitimacy and precedents — undertaken in the first article, published in the previous edition of this journal.[5]
In relation to the former doctrine, it should be noted that the existence of an implied guarantee of general legal equality has since seemingly been rejected by five judges of the High Court in Kruger v Commonwealth.[6] The two proponents themselves have now left the Court. Yet the judgment still merits attention. The effects of any equality guarantee would have been so far-reaching that, even if currently out of favour, it cannot be ignored. Similarly, the method of implication employed offers substantial potential for further implication of constitutional rights. The method is not as easily rejected as some have suggested. In fact, once the nature of constitutional implications is clarified and understood in the manner set out in the first of this pair of articles, it can be shown that the approach employed by Deane and Toohey JJ was neither unprecedented nor wholly implausible. Despite this, upon analysis, a general guarantee of legal equality cannot legitimately be found implied within the Australian Constitution. The reasons for these conclusions are set out in Part III of this article.
As for the latter doctrine, the two founding decisions have given rise to a new line of cases.[7] However, the derivation of implications from representative democracy came to cause significant divisions within the High Court, most notably in Theophanous v Herald & Weekly Times Pty Ltd[8] and McGinty v Western Australia.[9] A particular focus of the dispute was the suggestion by some judges that constitutional implications were being derived from representative democracy as though it were a ‘free-standing principle’,[10] and that this was illegitimate.[11] This debate led the Court, in its joint, unanimous judgment in Lange v Australian Broadcasting Corporation, to state that constitutional implications could only legitimately be derived from the ‘text and structure’ of the Constitution.[12]
Part IV of this article focuses on the manner in which the democratic implications have been derived, and on the legitimacy and merits of the different judicial approaches adopted in the area. When the matter is examined in light of the analysis in my earlier article, it can be shown that the attack on the use of representative democracy is substantially misconceived. Furthermore, a compelling case can be made that constitutional implications protecting essential components of the process of representative democracy can and should be recognised.
Before turning to either of these doctrines, however, it is worthwhile to address the merits of an objection that is commonly raised against the recognition of implied rights, namely, that it is contrary to the intentions of the framers of the Australian Constitution. This is the topic of Part II.
It has regularly and prominently been asserted that the Australian framers made a choice not to adopt a bill of rights. They followed the British and not the American tradition, it is said, entrusting the protection of individual liberties to the democratic process and the operation of the common law.[13] Dawson J in particular raised the point as a barrier to the implication of rights.[14]
The relevance of the framers’ view, if any, depends on the interpretational theory or approach that is adopted. To provide a brief summary,[15] the traditional Australian approach, often labelled ‘literalism’, falls substantially within the realm of originalism. The theory of originalism involves seeking the intended meaning of the words, understood within the context in which the document was drafted and enacted. As one moves away from strict originalism on the interpretative spectrum, then modern needs, values, preferences, standards and expectations may be taken into account to an increasing extent. Some such dynamic currents can be found in Australian constitutional jurisprudence.
Within originalism, there are some differences in which types of sources may be employed as guides to intent. Textualism focuses on the text; intentionalism is prepared to examine broader sources, such as (for Australia) the debates of the constitutional conventions in the 1890s, and thus gives greater emphasis to the particular views of the framers. Australian orthodoxy is substantially textualist, but some resort to extraneous materials has been permitted.[16]
Within this framework, three main (overlapping) arguments can be made as to why the historical assertion relating to rights could be relevant to interpretation. First, an intentionalist case can be made that the framers had an actual, positive intention not to include either a bill of rights or broad express guarantees of individual rights, and that this precludes the recognition of implied rights guarantees. In fact, it appears the framers never actually discussed whether to adopt a bill of rights.[17] This absence of discussion may merely illustrate how undisputed the issue was. Proponents of this type of view invariably point to the 1898 debate in which the Convention rejected both Inglis Clark’s proposed clause guaranteeing (inter alia) equal protection and due process and O’Connor’s clause guaranteeing due process.[18]
Some of the usual problems with intentionalism arise here.[19] The debate in question was ‘confusing and wandering’;[20] the clauses in question had multifarious aspects and possible effects, which the framers struggled to deal with. Certainly, one important theme — perhaps the most important one — was a desire not to limit democratic processes, combined with a view that such guarantees were unnecessary in civilised nations.[21] There were other significant themes, however, such as a desire to protect State powers,[22] and a concern not to prohibit certain racially discriminatory laws.[23] Much of the discussion related to another aspect of Clark’s clause: protecting the ‘privileges and immunities of citizens’[24] when in different States (the broad issue addressed by s 117 of the Constitution). In the end, the vote against O’Connor’s due process clause was close: 23 to 19. By no means did a clear majority of the Convention expressly repudiate the whole notion of constitutional rights. It is possible, however, that more focused intentionalist arguments could be made in relation to particular rights guarantees which were considered and rejected by the framers.
The second argument in this context, which need not rely on particular debates, points simply to the absence of a bill of rights in the text. The argument suggests that, because the Constitution-makers were largely not concerned with the protection of rights, there is no reason to think such protections were intended to be implied (whether the Constitution-makers are regarded as the framers or the Australian people of 1899–1900).[25] In other words, one might characterise the system as being one in which democratic processes, rather than judicial ones, were the primary means by which the protection of individual rights was intended to be achieved, and then attribute interpretational significance to this characterisation. Thus Dawson J emphasised that ‘the Constitution deals, almost without exception, with the structure and relationship of government rather than with individual rights’.[26] The result is an effective presumption against implied rights.
This argument, too, faces difficulties. There is no necessary inconsistency between a general inclination not to include rights guarantees and the presence of some (though perhaps not numerous) specific implied rights. Much of what the Constitution requires is communicated by implication;[27] there is no inherent reason why rights matters should be different in kind in this respect. In 1901, for instance, Quick and Garran readily posited the existence of a series of implied rights relating to access to the federal government.[28] The Constitution-makers may have been quite content to leave it to the courts to flesh out the meaning and implications of phrases such as ‘directly chosen by the people’ in ss 7 and 24 of the Constitution, or the notion of ‘judicial power’ in s 71, just as they apparently were content to allow the courts to develop the meaning of the s 92 guarantee that interstate trade and intercourse shall be ‘absolutely free’.[29]
Even aside from their conscious intentions, the Constitution-makers may not have realised or thought through the full implications of the constitutional imperatives they had created.[30] The entrenchment of aspects of representative democracy and of the separation of powers may have created imperatives that conflict with the general intention to grant the Commonwealth certain plenary powers. Such internal tensions must be resolved by the courts. And usually the general gives way to the specific in interpretation, as encapsulated in the canon generalia specialibus non derogant.[31]
The second argument therefore does not work as a general rejection of all implied rights. It might be submitted, however, that the argument does support having an inclination against the recognition of implied guarantees of rights. Yet it would be wrong to characterise Australia’s Constitution as generally entrusting contentious principles and the protection of important interests to the care of democratic processes. There are numerous express restrictions and guarantees in the Constitution that cut across federal and/or State power to protect particular principles. These include provisions in ss 41, 51(ii), 51(iii), 51(xxiiiA), 51(xxxi), 80, 92, 99–100, 114, 116–19, 123 and 128, and possibly — depending on whether one characterises them as simply relating to the division of powers or guaranteeing fundamental principles — sections such as 90 and 109. Such provisions led one commentator to state of the draft Constitution in 1899 that ‘the distrust of legislatures, which is a marked and increasing American characteristic ... is to a considerable degree displayed in the Australian Bill’.[32]
Admittedly, most of these restrictions entrench particular principles of federal relations,[33] rather than going to protect individual rights. However, the provisions which do protect individual rights — notably ss 51(xxxiiiA), 51(xxxi), 80 and 116 — are significant exceptions. The fact that they restrict only the Commonwealth, and not the States, does not mean that they should be characterised as dealing with federal relations. They were restrictions agreed to be placed on the new level of government. To have applied them to the States would have added a distinct, politically difficult new dimension to the federation project.
Of course, it remains true that Australia does not have a large set of constitutional guarantees of individual rights. To that extent, it is correct to say that the Constitution-makers placed much trust in the ability of democratic processes to deal appropriately with individual rights issues. In so far as one attaches importance to the views of the Constitution-makers, this fact could validly incline one against recognising implied guarantees of rights. Yet the existence of the express limitations (both generally and in relation to individual rights) precludes the assertion of any strong presumption that the Constitution-makers simply trusted democratic processes. Any particular assertion of an implied right must be assessed on its merits.
Ironically, it is the very provisions just discussed that are the basis for the third and most forceful of the three arguments, a textualist expressio unius point. This principle provides that the express mention of a matter militates against implications arising from elsewhere in the document relating to that type of matter.[34] The express protection of certain interests and principles can be said to militate against any such implied protections having been intended. Such an argument was employed by four judges in Miller v TCN Channel Nine Pty Ltd to reject Murphy J’s asserted general guarantee of free communication: the s 92 guarantee of free interstate trade and intercourse was said to leave ‘no room’ for such a guarantee.[35] This particular invocation of the argument is unpersuasive. The express guarantee is substantially different both from the general implied freedom proposed by Murphy J and from the later-accepted guarantee of free political communication. It is directed purely to interstate engagement, unlike the other two freedoms. And it is not directed to protecting communication but does so only in so far as communication falls within ‘trade, commerce or intercourse’. Section 92 therefore offers no direct riposte to the two implications.[36]
One could argue at a more abstract level that the relevant subject or type for the purpose of applying the expressio unius canon here is ‘individual rights’ generally, or perhaps, even more broadly, ‘restrictions on available democratic choices’. All the limitations listed above then become relevant, as they can be said to indicate that this subject was considered and addressed only to the extent expressly set out. However, the strength of an expressio unius argument is a matter of degree, depending on how numerous and detailed the express provisions are, and on how closely related they are to the putative implication.[37] That some individual rights were protected does prevent an argument that the whole topic inadvertently was omitted, but such a general and abstract link makes only for a weak case against the possibility that some rights-protections were deliberately implied, assumed or not fully considered. Of course, the case will be stronger where the purported implication deals with matters closely related to particular express restrictions. Thus expressio unius arguments may potentially have force in relation to particular claimed implications, but they are not necessarily a barrier to the recognition of implied guarantees of rights.
The refrain that the framers trusted democracy and deliberately rejected a bill of rights is overplayed. It does not support any compelling general interpretational arguments, though some particular arguments may have potential merit, and there may be a case for originalists having a weak inclination against recognition of implied rights. Of course, the apparent views of the Constitution-makers on the subject make it somewhat difficult to imply rights simply because there are few plausible foundations available in the Constitution, as Mason CJ acknowledged in the Political Advertising Case.[38] As he also indicated there, however, the absence of a bill of rights is not an answer to any particular assertion of an implied right.
Leeth concerned a federal provision which subjected imprisoned federal offenders, housed in State or Territory prisons, to the parole laws of the State or Territory in which they were convicted.[39] Given the divergent nature of the various regimes, the law produced substantial disparities in the minimum sentences of prisoners convicted of the same federal offence in different jurisdictions.
Deane and Toohey JJ held, in dissent, that the provision breached a general constitutional guarantee of legal equality which was implied in the Australian Constitution. They stated that the ‘general approach of the framers of the Constitution’ was to ‘incorporate underlying doctrines or principles’.[40] Deane and Toohey JJ argued that specific provisions relating to these matters should be seen as merely particular manifestations of the doctrines or principles, and not as grounds for denying their existence ‘by invoking the inappropriate rule of expressio unius’.[41] The framers had simply assumed that such matters were entrenched by the Constitution and did not require express statement. Examples of such assumed doctrines were said to include the implied intergovernmental immunities and the doctrine of the separation of judicial power.
Deane and Toohey JJ provided no clear test for the recognition of doctrines or principles which underlie the Constitution, but seemingly it must be shown that the Constitution is ‘structured’ upon them or adopts them as a matter of ‘necessary implication’.[42] It seems implicit that there must be some manifestation in the text of the general doctrine or principle. However, the requirements or implications of such doctrines or principles can be given direct effect without the need to point to any specific textual basis for that particular aspect.
The distinction between doctrines and principles was clarified by Deane and Toohey JJ in Nationwide News.[43] The Constitution was said to be structured upon three ‘general doctrines of government’: federalism, the separation of powers, and representative government, with responsible government capable of being seen as either incorporated in the latter doctrine or as a fourth, independent doctrine.[44] Constitutional implications can also potentially arise from those ‘fundamental rights and principles recognised by the common law at the time the Constitution was adopted’.[45] Legal equality, though called a ‘doctrine’ in Leeth, appears to fall within this latter camp.
Deane and Toohey JJ asserted in Leeth that the common law recognised a constitutional doctrine of legal equality.[46] This had two aspects: the Diceyan subjection of all persons to the law and the ‘theoretical equality of all persons under the law and before the courts’.[47] This doctrine was adopted by the Constitution, prima facie restricting all Commonwealth powers. Deane and Toohey JJ did not indicate whether the guarantee also bound the States, though their arguments had the potential to extend that far.
Three considerations were said to support the incorporation of the doctrine into the Constitution.[48] The first was the ‘conceptual basis’[49] of the Constitution — manifested in the preamble to the Constitution’s enacting Act, and in covering clause 3 — that ‘the people’ had agreed to unite.[50] The ‘inherent equality of the people as the parties to the compact’ was implicit in that ‘free agreement’.[51] Secondly, notions of legal equality were implicit to a significant extent in the separation of judicial power. Thirdly, the doctrine was manifested by the range of provisions prohibiting particular types of discrimination or inequality; most notably by ss 51(ii), 51(iii) and 99, which prevent the Commonwealth discriminating between States or parts thereof in laws relating to taxation, bounties, revenue, trade and commerce, by s 117, which limits government discrimination on the basis of residence, and by s 92, which prohibits protectionist discrimination against interstate trade.[52]
The interpretative door opened by Deane and Toohey JJ is a very wide one indeed. A doctrine with only a weak foundation in the common law, and very limited express constitutional recognition at best, was held to restrict Commonwealth powers. An extraordinarily wide range of other rights or principles based in some sense on the common law could perhaps similarly be endowed with overriding constitutional status. In relation to the doctrines of government, it is notable that their Honours indicated that the implied intergovernmental immunities are drawn from ‘the nature of the Federation’.[53] This phrase has some similarity — though it may not be quite so open — to talk of what is implied by the ‘nature of the nation’, or of ‘our society’, as established by the Constitution. It was on this basis that Murphy J asserted many of his implied rights.[54]
The two judges were not wholly alone in Leeth, although Mason CJ, Dawson and McHugh JJ did unequivocally reject the implied guarantee.[55] Gaudron J did not decide the general guarantee issue, but she invoked instead a requirement of equal justice before the courts which overlapped with Deane and Toohey JJ’s guarantee to some extent.[56] Brennan J recognised some general principle of non-discrimination arising from ‘the constitutional unity of the Australian people’[57] said to be manifest in the preamble to the Constitution’s enacting Act. He neither provided significant argument in support of this implication nor clarified its contents. His approach has some similarity to the judgments of Griffith CJ and Barton J in R v Smithers; Ex parte Benson,[58] in which those judges derived an implied guarantee of freedom of movement from the nature of the unified, federated nation. Brennan J’s decision goes no further, on its face, than supporting an implied prohibition of unjustified Commonwealth discrimination on the basis of internal locality. It could even be limited to criminal law. At the same time, it is not necessarily inconsistent with Deane and Toohey JJ’s general guarantee. Brennan J’s approach did not garner support from the other members of the Court.[59]
The issue of a general guarantee of legal equality was reconsidered in Kruger.[60] The case concerned the removal of Aboriginal children, and the detention of other Aborigines, in the Northern Territory over the course of the 20th century. The plaintiffs unsuccessfully argued that relevant statutory provisions[61] were invalid for breaching six types of constitutional guarantee, including that of equality. Five judges appeared to reject any general guarantee of equality,[62] although Brennan CJ did confine his comments to the arguably sui generis Territories power (s 122 of the Constitution), which was at issue. Gummow J’s stated conclusion, though not his argument, was similarly limited. Toohey J alone upheld the equality doctrine and indicated that it might have been breached, subject to evidence.[63] Deane J had retired.
Leaving aside their interpretational method, Deane and Toohey JJ’s equality guarantee is itself extraordinarily wide. They gave no indication that it prohibits merely discrimination on the basis of locality. A guarantee of ‘equality of all persons under the law’[64] seems to apply to all laws. And, as they acknowledge, ‘almost all laws’[65] discriminate in some way by operating ‘to punish, penalize or advantage some, but not all, persons’.[66] The only exceptions would appear to be interpretative or definitional statutes.
It could be argued that Deane and Toohey JJ’s mention of discrimination ‘between people’[67] might focus the doctrine on discrimination based on intimate personal characteristics such as race, sex or religion.[68] They did not develop any such thought, however, and the provision in question did not discriminate on such a basis. One could argue that it discriminated on the basis of residence, though it is questionable both whether this is a meaningful personal characteristic and whether a law discriminating on the basis of the place of the crime and trial also can be said to discriminate on the basis of residence.[69]
Their doctrine seems to encompass any form of legal differentiation between persons, including that based simply on some people engaging in particular conduct. If this is correct, then the putative equality guarantee is much the same as the interpreted scope of the Equal Protection Clause in the 14th Amendment to the Constitution of the United States of America, guaranteeing ‘to any person’ the ‘equal protection of the laws’.
Few conceivable constitutional guarantees accord a greater role to judges than a general guarantee of legal equality. There are two basic stages involved in applying equality or non-discrimination requirements (at least on modern views). First, the court must ascertain whether there is any discrimination of the forbidden type (being possibly direct or indirect). Secondly, it must assess whether the discrimination is justifiable or objectionable. It is widely accepted that this second stage itself involves asking two questions:[70] ‘Is there a legitimate government purpose or relevant difference at stake?’ and ‘Is there a sufficient nexus between the means (the law) and this end such that the law is characterisable as justifiably made in pursuit of it?’ Thus Deane and Toohey JJ stated that discrimination was generally permissible only where it occurred on grounds ‘reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment’,[71] although they also did accept that some particular constitutional provisions might be of such a nature as to authorise discrimination — such as the aliens power (s 51(xix)).[72]
This two-stage approach is essentially the same as that generally taken for most constitutional guarantees (that is, assessing apparent infringement, then examining justifiability). Courts have long struggled with how to approach non-absolute constitutional guarantees. Judges tend to end up engaging in balancing analyses similar to those undertaken by law-makers themselves. The critical difference between a general guarantee of legal equality and other guarantees is that for the former the first step, infringement, is essentially otiose. All distinctions are suspect and thus nearly all laws, if challenged before the courts, have to be shown to be justified. This comes close to making the judiciary a ‘third legislative chamber’ of review and approval.[73]
Moreover, the issues that then arise at the justification stage in applying a general equality guarantee involve substantially unguided judicial choice. Humans are both alike and unlike, morally and factually, in myriad ways. To treat people as alike in one respect is often to treat them as unlike in another. To allocate one loaf of bread to everybody is to treat them equally per capita but unequally in relation to need, size or merit.[74] Talk of ‘equality’ does not specify which respect is relevant or most important. The concept of equality might be said to prohibit discrimination based on pure prejudice,[75] if such a thing is ever identifiable. Beyond this, the concept does not specify what differences are relevant or what competing purposes are legitimate. Justification must thus be assessed by reference to arguments derived from other principles, doctrines and philosophies. Equality is essentially ‘an empty form having no substantive content of its own’.[76]
Two characteristics therefore distinguish a general equality guarantee from other constitutional rights: its encompassing reach and its ultimate emptiness. This has led the United States Supreme Court to impose its own multi-level structure of review in relation to equal protection. Judicial review at the justifiability stage is undertaken with different intensity dependent on the particular type of discrimination involved. First, all laws are subject to ‘minimal scrutiny’, whereby it must be shown that they are ‘rationally related to a legitimate government purpose’.[77] Secondly, laws that discriminate based on particular ‘suspect classifications’ (especially race) are subject to ‘strict scrutiny’, whereby the law will only be upheld if ‘precisely tailored to serve a compelling governmental interest’.[78] Strict scrutiny also applies if the law affects a constitutional right or an interest deemed to be fundamental.[79] There appears, thirdly, to be an intermediate category of scrutiny, applicable to some discrimination based on sex or relating to certain quasi-fundamental interests. Laws must then be ‘substantially related’ to achieving ‘important governmental objectives’.[80]
This tiered approach to equal protection reduces the extent of judicial supervision, and the need for judicial choices, especially by allotting minimal scrutiny to most types of law. But judges have sometimes strained on their self-imposed leash. On occasion, particularly where a law discriminates in relation to personal characteristics or minority status, the Supreme Court has engaged in reasonably rigorous review under the cover of minimal scrutiny.[81] The development of intermediate scrutiny itself reflects dissatisfaction with the established two-tiered approach.
In any case, Deane and Toohey JJ’s approach in Leeth did not correlate with the American method. The provision did not obviously relate — nor was stated by them to relate — to any particular constitutional right, suspect class or fundamental or quasi-fundamental interest. They presented their justification test in terms of rationality. However, other judgments in Leeth noted the prison instability that could be caused by having similar prisoners (imprisoned under either State/Territory or federal laws) under different parole regimes within the one jail.[82] Deane and Toohey JJ implicitly acknowledged that this was a ‘relevant consideration’.[83] The provision rationally pursued the legitimate objective of avoiding such disturbance, and would therefore satisfy usual American minimal scrutiny. Their key objection was that this factor could not justify such ‘an extraordinary degree of disproportionality’[84] between the minimum sentences in different jurisdictions. They thus engaged in a balancing exercise, involving stricter scrutiny than a mere rationality review.
Deane and Toohey JJ’s approach does not rule out different types of discrimination triggering different degrees of scrutiny. A proportionality test, for example, allows just such flexibility.[85] However, this leaves judges more at large in deciding what interests are important and to what degree, and thus they are more involved in deliberating upon the appropriate resolution of competing societal claims.
On either an American tiered approach or a more flexible proportionality-type method, general equality guarantees allow judges to develop a list of matters considered to be worthy of particular protection, which are then protected by more rigorous scrutiny than that otherwise applied. To develop a list of interests deemed worthy of special protection from undue government regulation is, in effect, to develop a list of constitutional rights. After all, given that all regulatory laws discriminate in some way, a breach of rights argument can always be framed in terms of equality. Thus Deane and Toohey JJ’s equality guarantee both results in all-encompassing and substantially open judicial review, and contains the potential for the judicial development of an implied bill of rights.
The nature and merits of Deane and Toohey JJ’s implied guarantee of legal equality can be more clearly understood if seen in light of the various types of implications and arguments distinguished in the first of this pair of articles.[86] Their Leeth judgment involves reasoning from an external common law doctrine of legal equality, said to be impliedly incorporated into the Constitution (to invoke the third system of classification set out in my previous article). The incorporation is said to be manifest by the text in a substantially inductive way (to make use of the second system).[87]
Deane and Toohey JJ are right to suggest that incorporated doctrines play a fundamental role in Australian constitutional law.[88] And, although inductive arguments must be approached with great caution, the inductive element of their judgment cannot be condemned out of hand. In Lange, the whole High Court placed great emphasis on deriving implications only from the ‘text and structure’ of the Constitution,[89] which might be taken to suggest that reasoning from incorporated doctrines, and/or making use of inductive arguments, is necessarily illegitimate. Any such suggestion is inconsistent with substantial tracts of Australian constitutional law.[90]
This point does not establish, however, that the derivation of the particular guarantee is defensible or legitimate. Consideration of this question depends on the interpretational approach adopted. To begin with, if the purported equality guarantee were to be considered within an intentionalist approach to interpretation then it would be very difficult to sustain. The framers expressly rejected the suggested inclusion of an equal protection clause (albeit as part of a broader clause of somewhat ambiguous purpose).[91] Deane and Toohey JJ imply that the framers thought such guarantees legally ‘unnecessary’ because they were given sufficient effect by implication,[92] but the references provided in the judgment indicate simply that the relevant framers believed there was no political or philosophical necessity to impose such constitutional restraints.[93]
The Australian orthodoxy adopts a more textualist than intentionalist approach, however. Even here, the implication faces an immediate difficulty. In Doyle’s words, to find a ‘thorough going doctrine of legal equality in the common law of 1900 requires some judicial athleticism’.[94] Deane and Toohey JJ cited no case law to support the doctrine. For its first aspect — the subjection of every person to the ordinary law and tribunals — they invoked Dicey’s discussion of the rule of law.[95] For the second aspect, the key principle of general ‘theoretical equality’, they cited only Holdsworth’s history of English law.[96] Yet this reference itself relates merely to Dicey’s rule of law,[97] leaving the second aspect relevantly unsupported. The judges’ quick dismissal of ‘past anomalies, notably, discriminatory treatment of women’[98] is, in this context, less than convincing. They suggest that, such anomalies apart, the common law has discriminated ‘only by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it proscribes, punishes or penalizes’.[99] That the common law has only discriminated on grounds it has prescribed and considered relevant is beside the point: presumably any legal rule discriminates only on such grounds. The issue is whether the doctrine extends to the judicial assessment of such grounds when employed by other law-making institutions. The common law did not designate itself the overseer of parliamentary choices.
Leaving aside the actual doctrine, what of the three considerations Deane and Toohey JJ offered in support of its implied incorporation? The first, the ‘conceptual basis’[100] of the Constitution, appears to invoke notions of normative popular sovereignty, that is, the notion that governmental power derives from, and should be exercised for the benefit of, the people. Such use of popular sovereignty is problematic. That the normative authority for the Constitution may come to some extent from the people does not establish that the people imposed any particular limitations on their delegation of power to governments.[101] True, democracy arguably does presuppose that citizens are morally equal in some sense. Contract law also assumes that parties are free and equal agents in some sense, yet it does not generally require equality or justifiability of outcomes or benefits. Such matters are for the parties to assess. Equality in one respect does not practically or logically equate to, or require, equality in other respects. Even if a successful argument could be made that democratic equality did equate to general legal equality, this still does not establish that the judiciary was intended to be, or should be, the institution responsible for adjudicating the balancing of interests involved.
Deane and Toohey JJ asserted in a related argument that it would be ‘somewhat surprising’ if the Constitution protected the ‘artificial entities’ that are the States from federal discrimination without also protecting the people who constitute the States from discrimination.[102] It would be fallacious to argue that the entirety of a doctrine must be given effect because some part of it is entrenched.[103] In any case, the purported connection between general equality and the implied federal immunity is unconvincing. Any legislative power that extends to people necessarily involves the power to discriminate between them, but legislative powers need not include the power to discriminate against other governments.
Deane and Toohey JJ’s second consideration supporting incorporation involves the legal equality said to be implicit in the separation of judicial power.[104] The idea of judicial impartiality is certainly deeply rooted, but this has generally been understood in the procedural sense of judges applying laws equally, without fear or prejudice, and not in the substantive sense of judging the laws themselves.[105] No doubt judges seek to avoid unjustified substantive discrimination in exercising their quasi-legislative capacity of developing the common law. They are also guided, presumably, by factors such as what is right, consistent and economically efficient, yet these are not suggested to constitute grounds of judicial review of legislation.
Deane and Toohey JJ’s crucial third consideration — the invocation of various express provisions as inductively manifesting a general doctrine or equality — has a negative and a positive aspect. The negative aspect is that it counters the interpretational canon of expressio unius. This principle indicates that the express mention of one matter tends to negate any implication elsewhere in the document that similar matters might be covered.[106] Its underlying, originalist premise is that the express provision indicates that the type of matter was considered by the drafters/ratifiers and sought to be addressed only to the extent set out. Deane and Toohey JJ called the principle an ‘inappropriate rule’[107] for constitutional interpretation. Conversely, they presented those very express provisions that might point to expressio unius as positively invoking the broader equality doctrine. A weakness was transformed into a purported strength.
The judges’ downplaying of the expressio unius canon is by no means unprecedented. Judges notably failed to deal with such an argument in relation to the implied intergovernmental immunities.[108] More generally, the courts have long stated that the canon should be ‘applied with care’:[109] the purportedly implied matter may have been left unexpressed because of ‘inadvertence or accident’;[110] it may have been simply assumed to be covered, or deliberately left in the realm of implication; the express provision may have been inserted out of excessive caution.
Kirby J has argued that, given the need for the Constitution to address a multitude of changing needs, the reasons for caution in relation to expressio unius apply ‘with even greater force’[111] to the constitutional context. His argument reflects the broader non-originalist tendencies in his view of constitutional interpretation.[112] Whilst a strong case can be made for facilitating some flexibility in constitutional interpretation,[113] this can be done in different ways. For example, the approach that I have advocated — evolutionary originalism — introduces flexibility only after ascertaining basic original intent, and only within the limits of the broad original ideas and concepts. The expressio unius principle can operate as a reasonable, logical guide to likely intended meaning. If one is genuinely seeking original intentions, for whatever precise purposes, then use of the canon is potentially relevant and appropriate.[114]
Indeed, it can be argued that if one views popular sovereignty as a substantial basis of the Constitution’s moral authority then expressio unius should have a strengthened role in the constitutional sphere. The Australian people of 1899–1900 could not have read the draft Constitution with the legal sophistication of the framers or the Imperial Parliament. The people would have been less likely than those other bodies to realise, let alone approve of, the possible range of implications involved in the document. The original High Court made just such an argument in The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employes Association.[115]
Yet that argument should be rejected. To impose a false level of simplicity or obviousness on complex constitutional issues would be detrimental. Such an approach might call into question the meaning of all terms of art, for instance. The people can reasonably be taken to have accepted just the broad outline of the constitutional settlement in 1899–1900.[116] In any case, to speculate on their specific understanding, beyond looking to the generally understood meaning of popular words or terms, is artificial. This view does not significantly undermine the legitimating role of the people’s approval, for, analogously, statutory terms of art are given their established legal meaning, though many members of Parliament would not have understood them.
The strength of an expressio unius argument is a matter of degree, depending both on how closely related the express provisions are to the putative implication and on how numerous and detailed those express provisions are. The more closely related, numerous and detailed the provisions, the harder it is to argue that the topic covered by the implication was not considered (and so forth). In relation to the federal immunities, s 114 is the only provision clearly addressed to the issue of intergovernmental immunity, thus the expressio unius argument in that context is not a strong one.[117]
Here, the relevant topic in relation to a general equality guarantee is governmental discrimination — whether between regions, people and/or conduct — on impermissible grounds. Sections 51(ii), 51(iii), 99, 92 and 117 of the Constitution all prohibit such discrimination in various specific ways. This indicates that the issue of such governmental discrimination was carefully considered, and addressed just to a limited extent. It cannot credibly be suggested that the broader issue of equality was overlooked, simply assumed, deliberately implied, or partially dealt with expressly out of excessive caution. The detailed express provisions would not have been included if there had been an intention to give effect to a general guarantee of equality.
If Deane and Toohey JJ had adopted the American tiered approach to equal protection, this might have offered them a partial response to this powerful expressio unius argument. The express prohibitions on particular types of discrimination would then have been subject to stringent review, with those laws not covered by the express provisions being subject to more deferential scrutiny. A significant role for the express guarantees would have been maintained, thus explaining their inclusion. However, Deane and Toohey JJ’s judgment was inconsistent with the American approach.[118]
The inductive argument might have been persuasive if the specific provisions made little sense unless understood in light of the broader doctrine. Yet to prohibit discrimination on a particular ground is perfectly understandable without invoking broad, and substantially empty, notions of general equality. There is no other apparent textual or historical reason for concluding that there was an intention to incorporate the doctrine inductively.
The implied guarantee thus is substantially implausible within a textualist-originalist model. This conclusion rests simply on textual grounds, before giving particular consideration to the interpretational factors relevant to deriving implications within any originalist approach to interpretation (factors set out in the first of these articles).[119] These factors play a role in examining the last hope of the implication: that it may be supportable within the theory of evolutionary originalism.
The text does communicate the original idea that equality is required by the Constitution, albeit only in some limited respects. Any general guarantee would, therefore, arguably be within the outer limit set by evolutionary originalism. The key question is whether this partial communication should be regarded as having evolved into an encompassing guarantee of equality. This hinges on consideration of the factors I have listed elsewhere,[120] which overlap with the factors listed in the first of these articles going to the derivation of implications.[121]
Over the course of the past century, the concept of legal equality has undergone significant development. Leading jurists have suggested that it is the core value underlying the modern growth of human rights jurisprudence.[122] In Australia, as elsewhere, it is now widely accepted that governments and others should generally not discriminate on the basis of race, sex, religion and other such grounds. This view is given effect to varying extents by the anti-discrimination statutes in force in every jurisdiction in Australia.[123] Brennan J relied upon this change in Australian ‘contemporary values’ in developing the common law in Mabo v Queensland [No 2].[124]
What neutralises the evolutionary argument is the nature of a guarantee of general legal equality. Such a guarantee represents a blank judicial chequebook, as argued above.[125] Nearly all laws would be subject to potential judicial review — at the justification stage — for compliance. The supposed criterion of review, equality, is empty; the philosophical work would be done by the judicial determination of what ends and distinctions are legitimate. Such a guarantee would lead, in likely effect, to the judicial creation of a constitutional bill of rights. To put this in terms of the implication factors: the consequences of the guarantee could not be more far-reaching; many central political issues (any covered by legislation) would be subject to the courts’ ultimate control; the implication could be precisely defined only in the formal sense of being simply stated.
As for the positive imperatives supporting the guarantee, apart from the evolution in human rights jurisprudence, there are none. Unlike the implied federal immunities,[126] there is no internal tension requiring resolution, no relevant textual presupposition, no institution or structure created or presupposed by the Constitution implicitly requiring protection. The guarantee is at the very edge of what can plausibly be regarded, within any interpretational theory, as indirectly communicated by the text. Such a substantial transfer of power to the judiciary would require a clear democratic mandate. Flimsy textual pegs do not suffice.
Any evolutionary argument must be persuasively supported, taking account of the relevant factors. These factors, at least as I have presented them, are never likely to allow the wholesale implication of some particular philosophy when that philosophy imposes significant and broad-ranging restrictions on government and is supported by no clear democratic mandate. Evolutionary originalism openly recognises, in broad terms, the inevitability of judicial choices in constitutional interpretation. It seeks to provide beneficial direction to that element of choice. Yet it is a theory which respects the legitimate limits of the text and nature of the Constitution. Beyond these limits, judges have no general jurisdiction to impose their view of the right and the good. When judges give strong effect to encompassing restrictive doctrines without real support in the Constitution — whether under the label of equality, or perhaps the rule of law, or deep common law rights, or wide notions of liberal democracy — what they are ultimately engaged in is illegitimately imposing their own political philosophy. As Gleeson CJ has stated in another constitutional context:
The rule of law is not maintained by subverting the democratic process. The Constitution, which is the instrument of government of a democratic, and therefore political, society, has not substituted general judicial review for political accountability.[127]
In summary, although the interpretational approach adopted by Deane and Toohey JJ was explicable and plausible, a wide range of arguments can be made against the implied guarantee of general legal equality proposed by them. These reasons speak to different interpretational theories with different force. Together, the case they mount is overwhelming. The High Court was right to reject the implication.
Brennan J’s apparent suggestion in Leeth of a prohibition on federal discrimination on the basis of locality would be a far more limited guarantee than the general version, and would not be subject to the same fundamental problems of legitimacy. It is even more similar to the existing express limitations than the general doctrine, however, thus increasing the force of the textual expressio unius argument.
In relation to evolutionary arguments, rather than being an implication supported by changes in the nature of Australian society, it is one evocative of pre-Federation concerns. Many of the various express prohibitions on federal discrimination reflected the worry, especially in the smaller colonies, that particular colonies would dominate the new Commonwealth to the detriment of others. Yet the smaller States have long benefited disproportionately from federal grants, for example. If anything, Brennan J’s suggestion would pose most danger to schemes which assist regional and rural communities. There is no evidence of any modern desire or imperative to adopt such a requirement of geographical equality. The suggestion should be rejected.
The basic reasoning employed in the judgments in the Political Advertising Case[128] and Nationwide News[129] can be simplified to three steps. The Australian Constitution established and maintains the Commonwealth as a representative democracy (or representative government). Freedom of communication on political and governmental matters is essential to the effective operation of this system of government. The Constitution therefore impliedly protects such communication from undue restriction. Brennan J summarised the argument thus: ‘where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government’.[130]
Much controversy and confusion has resulted from this deceptively simple, ground-breaking argument. In fact, the precise forms of reasoning invoked by different members of the High Court in the two founding cases, and subsequent decisions, did vary in subtle but important respects. Particular attention subsequently has been focused on whether, and how, it is legitimate to draw implications from the doctrine of representative democracy when that doctrine is not expressly mentioned in the Constitution. Profound disagreements emerged amongst members of the Court on these issues in Theophanous,[131] a case concerning the effect of the implied freedom on defamation law, and in McGinty,[132] dealing with a putative guarantee of equality of voting power in relation to the Western Australian state electoral system.
The Court sought to achieve a common position in a joint, unanimous judgment in Lange[133] in 1997. It reaffirmed the existence of the implied freedom protecting communication on ‘political and government matters’,[134] and accepted that this implication affected defamation law.[135] Some attempt was made to limit the scope of implications from representative democracy. Nevertheless, by accepting that the Constitution protects free political communication as an ‘indispensable’ element of the entrenched system of representative government,[136] and accepting indeed that the Constitution ‘embraces all that is necessary to effectuate the free election of representatives’,[137] the Court has wedged the door open for implication of a range of guarantees protecting the democratic process.[138]
In this Part, I seek first to analyse the nature of the reasoning employed by the various judges in recognising the implied guarantee of free political communication; second, to examine the nature and strength of the analytical attack made by certain judges (especially McHugh J) on some aspects of this reasoning; third, and in light of these discussions, to assess the strength of the case for accepting constitutional implications protecting representative democracy. Once again, this examination employs the ideas and tools developed in the first article of this pair.[139]
It is appropriate to note at this stage that, whilst judges in the two founding cases tended to use the terms ‘representative democracy’ and ‘representative government’ interchangeably, it has since been suggested by some judges that the terms should be distinguished, and that ‘representative government’ is the relevant label in the context of Australian constitutional law.[140] It is difficult to tell the concepts apart. Gummow J defined representative government as a system of ‘ultimate control by the people, exercised by representatives who are elected periodically’.[141] Yet this definition is essentially the same as that for representative democracy: ‘government by the people through their [elected] representatives’.[142] To the extent that there is any difference, the better view is that ‘representative democracy’ is the relevant doctrine,[143] and that is the term I generally will employ.
All seven judges in the Political Advertising Case and Nationwide News recognised some guarantee of freedom of political communication, tied to the Constitution’s entrenchment of representative democracy or representative government. The details of the reasoning did vary. Three approaches can usefully be distinguished, based on the second and third systems of classification set out in Part III of my previous article.[144] The second system addresses the manner in which the text manifests an implied meaning (mono-provisional; multi-provisional; inductive; no direct manifestation). The third system deals with the degree to which the text itself plays a role in answering the relevant interpretational question (the categories distinguished are: text-dominant; purposive; incorporated doctrines; no significant role).
The first and narrowest approach was that of Dawson and McHugh JJ, who grounded their views on the provision in s 24 of the Constitution that ‘[t]he House of Representatives shall be composed of members directly chosen by the people of the Commonwealth’, and the parallel requirement in s 7 that Senators be ‘directly chosen by the people of the State’ in each State. For Dawson J, this required a ‘true’,[145] ‘informed’[146] or (later) a ‘genuine’[147] choice. Although he rejected talk of a ‘freedom of political communication’ as such,[148] he viewed these provisions as guaranteeing the people ‘an opportunity to gain an appreciation of the available alternatives’.[149] His view does establish some protection of political communication from governmental interference. This fact was illustrated by his lone dissent in Langer v Commonwealth, in which he held invalid a Commonwealth provision which prohibited the publication of information with the intention of encouraging voters to employ a particular voting technique (the technique produced a valid vote but was contrary to the main intended operation of the voting system).[150] The main practical difference between Dawson J’s view of the constitutional protection of political communication and the views of the other judges relates more to the weight attached to the principle than to the basic principle itself.[151]
McHugh J’s reasoning in the Political Advertising Case can be summarised as follows:[152]
He therefore inferred constitutional ‘rights of freedom of participation, association and communication in relation to federal elections’,[153] guarantees that he later regarded as operating only during federal election periods.[154]
Any implication involved in the approach of Dawson and McHugh JJ is manifest in an essentially mono-provisional manner, in that it is founded on one clause, albeit one repeated in two sections. More importantly, in terms of the third system of classifying implications, their view purports to be text-dominant. The text is presented as doing the basic work in answering the questions posed.
The second distinguishable approach is that of Mason CJ and Brennan J. Although their views of the application of the implied freedom were somewhat different, their method of deriving it from the Constitution was similar. They gave some emphasis to the ‘directly chosen’ clause, but they also pointed to other sections of the Constitution.[155] In particular, they invoked:
These sections together were taken to establish and maintain the Commonwealth as a representative democracy. The efficacy of representative democracy depends on free political communication — hence the Constitution was said impliedly to protect this freedom.
Mason CJ and Brennan J adopted a multi-provisional approach, in terms of the second system of classification. Both judges presented the freedom as a ‘structural’ implication, not arising from any one particular provision.[157] In relation to the third classification system — the degree to which the text plays a role in answering the interpretational question posed — one might argue that Mason CJ and Brennan J adopted a purposive approach.[158] Their approach is better regarded as involving an incorporated doctrine, however, one step further along the relevant spectrum. The judges implicitly refer to an external, pre-existing concept of representative democracy, and this concept involves rather broader issues than some particular ad hoc constitutional purpose. These are characteristics of reliance on an incorporated doctrine.
But for one consideration, Gaudron J’s judgment in the Political Advertising Case would be a classical example of reasoning from a multi-provisional incorporated doctrine.[159] As she elegantly phrases it, the relevant provisions of the Constitution ‘predicate and, in turn, are predicated upon a free society governed in accordance with the principles of representative parliamentary democracy’.[160] In other words, certain sections can be regarded as cumulatively giving some effect to an external constitutional doctrine, that conclusion can then shape the interpretation of the particular sections, and implications may arise from the doctrine to the extent that its incorporation is supported by the provisions. The one doubt about classification is her reference to a ‘free society’,[161] which is reminiscent of Murphy J’s derivation of implications from ‘the nature of our society’.[162] The allusion appears deliberate, for she cites his judgments in relevant footnotes.[163] Her statement lays a foundation for the development of broad and encompassing implied rights based on substantive liberal conceptions of democracy.[164] In so far as this is the case, her approach must be an inductive one, for the sections she cites offer little direct support for any such broad doctrine. It must be acknowledged, however, that her subsequent judgments have not developed this aspect of her decision.[165]
Deane and Toohey JJ (together) did take a distinctive third approach. In terms evocative of their judgment in Leeth, they asserted that representative government was one of the ‘general doctrines of government which underlie the Constitution and are implemented by its provisions’,[166] and that this doctrine ‘incorporates an implication of freedom of communication’[167] on governmental matters.
Although it can be difficult to distinguish multi-provisional and inductive approaches from incorporated doctrines, and the differences are ones of degree, Deane and Toohey JJ did employ an inductive technique. What distinguishes the two techniques is that with an inductive approach, first, the text forms less of a limit, allowing broader doctrines or parts of doctrines, or broader substantive conceptions of doctrines, to be regarded as incorporated. Secondly, the supporting express provisions have reduced effect, tending to be subsumed in the general doctrine. Here, the two judges essentially just asserted their version of representative government, with very little textual argument. They did refer to the constitutionally required electoral processes,[168] but these were presented more as mere manifestations of the general doctrine than as its constitutional foundation. The text did little to shape the doctrine: the freedom of political communication was derived directly from representative government, with little reference to the text. Reflecting this in McGinty,[169] Toohey J derived a guarantee of equality of voting power from a doctrine of representative democracy he found to be entrenched in the Constitution Act 1889 (WA), despite the fact that he regarded the main provision supporting the doctrine as not, of itself, supporting any such guarantee.[170]
The basic three approaches employed by the judges in the founding cases, therefore, involve a purportedly mono-provisional and text-dominant view (Dawson and McHugh JJ), a multi-provisional incorporated doctrine (Mason CJ, Brennan J and perhaps Gaudron J), and an inductive incorporated doctrine (Deane and Toohey JJ). All are plausible.
McHugh J mounted a strident attack in Theophanous and McGinty on the view that representative democracy or government is an incorporated doctrine from which implications may be derived. His basic point — echoed by Dawson J,[171] Brennan CJ[172] and perhaps Gummow J[173] — was that implications may legitimately be derived only from the ‘text and structure’ of the Constitution.[174] The term ‘representative government’ could only be employed appropriately as ‘shorthand’[175] for what the Constitution itself provided. The majority judgments in the Political Advertising Case, Nationwide News, Theophanous and Stephens v West Australian Newspapers Ltd[176] had treated representative democracy as ‘an overarching and free-standing provision equivalent to a hypothetical s 129 of the Constitution’,[177] and had deviated from accepted principles of interpretation.[178] Brennan CJ stated in McGinty that it was ‘logically impermissible’ to treat an external doctrine of representative democracy as though ‘contained in the Constitution’.[179]
These views appear to have been a significant influence on the Court’s joint, unanimous judgment in Lange. The Court accepted that the Constitution provided ‘for the institutions of representative and responsible government’,[180] referring to a wide range of supporting sections,[181] but stated that the Constitution only gives effect to these doctrines ‘to the extent that the text and structure establish it’; the labels may only be used as ‘shorthand’.[182] Although the Court affirmed its recognition of the implied limitation protecting free communication on political and government matters, the exact basis of the freedom was a little unclear: the Court sometimes appeared to emphasise just ss 7 and 24,[183] sometimes those sections along with ss 64 and 128,[184] and sometimes the whole set of relevant electoral and democratic provisions.[185]
At the least, the Lange emphasis on text and structure implicitly disapproves of inductive arguments, for these depart significantly from the guidance of the text. This did not prevent Toohey J reiterating his and Deane J’s approach to legal equality and freedom of political communication in Kruger.[186]
The analytical attack led by McHugh J is fundamentally flawed. Incorporated doctrines have played a foundational role in Australian constitutional law, notably in relation to the implied intergovernmental immunities, the implied national power and the separation of judicial power.[187] Indeed, the case for representative democracy is rather stronger than that for the separation doctrine; the latter is mainly supported by an inductive argument, whereas democracy need not be. Of course, even with a multi-provisional approach the text does recede into the background, which raises legitimacy concerns. Yet the long-accepted federal immunities, for example, are manifested in a multi-provisional manner.
Moreover, Dawson and McHugh JJ’s view that the text can be made to do the interpretational work here is weak.[188] That view might have been persuasive if ‘directly chosen by the people’ had simply been regarded as prohibiting indirect forms of elections.[189] To take the further step of regarding it as protecting a genuine, informed, free and/or effective choice is certainly a reasonable interpretation, but the Court is then required to define the conditions of such a choice.
Viewed strictly, a person’s choice can be meaningful without being informed of the opinions of others. On the other hand, a great deal can reasonably be argued to be practically necessary to satisfy this requirement. An electoral choice would be arbitrary if made in an information vacuum. Some elite could be authorised to provide relevant information and opinions, but any such restrictions would be likely to favour the existing governors (or reflect some other prejudice) and thus would tend to distort the choice. Some significant degree of free communication therefore is required, though how much, and when, is far from clear. The closely related freedoms of assembly, association and movement can be tied to this imperative for free communication. For the same sorts of reasons, any restriction on who can present themselves to be chosen militates against a free choice.[190] Some right to participate in the electoral process can thus be built on the choice guarantee. If significance is granted to the direct choice being a choice by the people — and to do so is reasonable — then plausible arguments can also be made about suffrage and equality of voting power.
In other words, the questions and possibilities that arise on Dawson and McHugh JJ’s textual approach are essentially the same as those that arise if one regards representative democracy (seen in process terms) as entrenched.[191] Where should the lines be drawn on their view? The constitutional text or ‘structure’ is of no direct assistance, for nothing is expressed in the Constitution as to ‘genuineness’ of choice, nor as to freedom of communication. Judges must themselves make choices on these issues. Even if there was some clear, pre-existing notion as to what minimum conditions are needed for a genuine choice, it would have to take account of the type of decision involved. What is involved here is a democratic choice. The desirability of judges attempting to draw the necessary lines in isolation from broader notions of what democracy involves is not self-evident, even if this were possible. McHugh J sought guidance at one point from the ‘common understanding’ of what is involved in elections.[192] Yet any such understanding will depend substantially on the theory and practice of representative democracy as it has evolved in Australia.
Some of the relevant judgments appear to have invoked a distinction between taking account of, and giving effect to, the doctrine of representative democracy.[193] The difference is one of degree, at best.[194] Even on the purportedly limited approach of Dawson and McHugh JJ, a great deal is read into the ‘directly chosen by the people’ phrase in ss 7 and 24. It is difficult to see why they would have chosen to take this interpretational step but for the influence of the doctrine or practice of representative democracy. Dawson J effectively admitted this, stating that his prohibition protecting genuineness of choice ‘is implicit in those provisions ... because representative government involves a choice by the people of their representatives’.[195] The existence and constitutional status of the doctrine was a necessary step in McHugh J’s argument in the Political Advertising Case, as is manifest in the summary of his argument provided above. Both judges thus gave (some) effect to the doctrine in that it made a substantial difference to their interpretations.
The argument that these judges merely gave effect to that doctrine which is present in the text and structure of the Constitution — ‘representative government’ being just a shorthand label — is circular. The Court stated in Lange that what is involved in the people directly choosing their representatives ‘can be understood only by reference to the system of representative and responsible government to which ss 7 and 24 and other sections of the Constitution give effect’.[196] The sections seemingly are to be understood by reference to a system of government, which system is to be found in those sections. If you need to look beyond the sections to some ‘system’ to provide a required answer, then the text in those sections alone, by definition, cannot provide that answer. Talk of construing the sections in context does not change this fact, for there are no relevant determinate lines to be found within the text. The Court’s approach in recognising an implied guarantee of free political communication requires the text to be greater than the sum of its parts. This is only possible if the Constitution is seen to incorporate aspects of an external doctrine.
It can be seen, therefore, that once it is accepted that ss 7 and 24 require a genuine (etc) choice, a text-dominant approach is no longer sustainable. The text cannot provide the requisite content of the constitutional requirement, nor determine the relevant boundaries. Dawson and McHugh JJ’s claim to greater legitimacy and analytical purity does not survive examination. To treat representative democracy as an incorporated doctrine is the more open, reliable and appropriate approach. This does not involve abandoning the text, however.
If seen in multi-provisional terms, such a doctrine takes its shape and character from the supporting provisions but is not exhaustively defined by them. The necessary line-drawing is guided by the text of the Constitution, the content of the external doctrine, and the usual factors determining the recognition of implications. This approach involves filling out what the incorporated doctrine requires, not drawing implications from implications.[197] The relevant question when it comes to such matters as recognising or delimiting a guarantee of free political communication is not ‘What do the terms and structure of the Constitution prohibit, authorise or require?’, as the Court suggests,[198] for this cannot supply the necessary answers. The question is more along these lines: ‘What conditions and requirements are constitutionally entrenched as part of the system of representative democracy or government in the form, and to the extent, that it is adopted in the Constitution?’
The approach of Mason CJ and Brennan J in the two founding cases is quite defensible in analytical terms, as may be that of Deane and Toohey JJ. This does not mean that either should be adopted, of course. Nor does it indicate which particular version of representative democracy should be regarded as entrenched, or to what extent.
The extent to which the Constitution entrenches and protects aspects of representative democracy, or of democratic choice, at the Commonwealth level is unclear. The Constitution establishes an essentially democratic electoral process.[199] The requirement that parliamentarians be ‘directly chosen by the people’ can reasonably bear a range of different meanings. No doubt it was intended to ensure that indirect forms of choice, such as electoral colleges, were not employed. Yet it is not self-evident that this exhausts the provision’s meaning. When there is textual uncertainty, and particularly when implications are involved, it is appropriate to be guided by such factors as those listed in the first of this pair of articles. Those factors produce a strong argument for recognising the multi-provisional incorporation of a doctrine of representative democracy, to the extent of protecting conditions essential to the effective operation of a democratic process. This conclusion can be supported within orthodox Australian originalism, and need not rely on an evolutionary method of interpretation.
The case for recognising such incorporation has its foundation in three positive constitutional imperatives. First, given that the Constitution clearly provides for a democratic electoral process, the conditions essential to maintaining the effective operation of that process can reasonably be regarded as impliedly protected. This argument has been the main one invoked by the judges.[200] It is a standard type of constitutional position: if the Constitution creates a structure or institution, it may be taken impliedly to protect that institution’s existence and functioning.[201] It is this argument which sustains the implied federal immunities.[202]
Goldsworthy responds that, whatever the necessity of free political communication, a judicially enforceable constitutional guarantee of such is neither necessary nor likely to have been intended.[203] Dawson J made a similar case.[204] Both assert that, although some aspects of the democratic process can be regarded as entrenched, this does not extend to that part of the concept requiring significant, ongoing political freedoms. The issues were left to be resolved in the political process.
In 1948, Sawer mounted much the same argument against the implication of federal immunities.[205] His objection did not prevail. Although federal concerns arguably have greater prominence in the Constitution than democratic ones, the preservation of democracy is of greater normative importance than preserving existing federal relationships. Sawer’s argument itself presupposed Commonwealth democracy. State interests also have rather stronger protection from political institutions than such individual rights as the democratic freedoms.[206]
In any case, Dawson J and Goldsworthy undermine their own argument. If there is no necessity for a judicial role, why do both proponents choose to recognise some protection of a genuine, informed choice? Such a construction was by no means required. A constitutional guarantee is ‘obviously’[207] not necessary except, it seems, where it is. Their requirement may only apply in ‘extreme cases’ where the damage to the political process is clear, but what constitutes unacceptable damage is open to argument. A citizen who is actually or substantially disenfranchised, or denied the opportunity to exchange pertinent information and opinions, or prevented from assembling in public, may well regard a legal measure as wholly objectionable. Moreover, this point goes to the strength of the principle supporting judicial intervention, not to the principle itself.
It may be that the framers or the Australian people of 1899–1900 did not envisage extensive constitutional protection of the incidents of representative democracy. Nevertheless, by a series of provisions they did create the Commonwealth as a representative democracy, just as they established a federation. They required that parliamentarians be ‘directly chosen by the people’. The framers may not have realised or thought through the implications of what they had provided, or they may have been content to leave these issues to the High Court. Whatever the position, the High Court is the institution required to give ultimate effect to the Constitution, and it cannot ignore the provisions and imperatives to be found in, and associated with, the text. It has not been suggested that these matters are inherently non-justiciable.
The second constitutional imperative supporting incorporation relates to the foundational role of democracy within the Australian constitutional scheme. Australia inherited the doctrine of parliamentary supremacy from Britain. It is that doctrine which founds the arguments of the critics of incorporation. Yet underlying parliamentary supremacy itself, at least on a modern normative view of that doctrine,[208] is the recognition that Parliament is constituted democratically and thus has a greater claim to legitimacy in rule-making than the Crown, executive or judiciary. As Kirby P stated in Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations, when rejecting the invocation of purportedly overriding common law rights, ‘unbroken law and tradition has repeatedly reinforced and ultimately respected the democratic will of the people as expressed in Parliament’.[209] Conversely, leading commentators have regularly stated that Australia does not have, nor needs, a bill of rights because relevant interests are sufficiently protected by the democratic process.[210] Moreover, the main reasons favouring judicial restraint in the implication, interpretation and application of constitutional rights are themselves based on respect for democracy.[211]
The next step in this argument can be presented in different ways. One can say that there is a constitutional imperative to protect the foundation of the constitutional system;[212] or that the reasons for judicial restraint are mitigated when it comes to protecting the process on respect for which that restraint is based;[213] or that there is a difference in kind between judicial intervention to protect the democratic process and intervention to enforce other constitutional rights;[214] or that the judiciary cannot ignore the consequences of intervening or not. However phrased, this sort of argument, presented most famously by Ely, has been supported by a number of prominent critics of general rights-based judicial review.[215] Of course, this imperative does not end the discussion. Even significant faults and deviations in the democratic process do not make the judiciary the more democratic institution. The reasons for judicial restraint are not wholly outweighed; there is much room for reasonable disagreement about what conditions are necessary for the effective operation of representative democracy, and arguably there must be some persuasive textual basis for any relevant constitutional requirements. Nevertheless, put simply, there is strong and legitimate constitutional reason to act to ensure the integrity of the democratic foundation of the governmental system.
The third imperative supporting incorporation is that the courts are ‘conspicuously well situated’[216] to take the role of protecting the democratic process. Politicians suffer from two types of conflict of interest when it comes to determining the shape and operation of that process. There is a general elite interest shared by all politicians in maintaining their positions as elected representatives. For example, they all have an interest in maintaining a strong defamation law, or in providing grants of public assistance only to existing political parties. Most politicians also have a partisan interest in benefiting their party or group over competitors. The judiciary, with its guaranteed tenure and independence, has no directly material self-interest at stake in monitoring the democratic process.
The other interpretational factors offer rather more ambivalent support to incorporation of a process-oriented doctrine of representative democracy. On the one hand, there is significant textual support for entrenchment of aspects of democracy, as set out above. It is quite reasonable to characterise the requirement of a democratic process as a fundamental constitutional guarantee given the substantial degree of democratic involvement in the development of the Constitution itself, the ‘prevalence of the democratic principle’[217] throughout the Constitution (the new Australian system was far more democratic in its operation than the then British, Canadian or American constitutions),[218] and the emphatic inclusion of the ‘directly chosen by the people’ guarantee.
On the other hand, the conditions essential to the effective operation of a democratic process are not spelt out in the text (aside from certain specifications with regard to elections themselves). The usual consequential concern to avoid the courts overriding decisions taken within the democratic process is mitigated here. Yet, as critics of Ely have made clear, focusing judicial review on the maintenance of democracy does not avoid the need for judges to make choices in this area, with important values and preferences at stake.[219] The starkness of these choices is much reduced when it is understood that there is ‘virtually unanimous agreement on the minimum freedoms essential to legitimate politicking’,[220] namely, some significant degree of free communication, assembly, association and movement, and regular, free and fair elections.[221]
These conditions can be precisely defined in the sense of identifying, for instance, a requirement of ‘freedom of communication on political and government matters’. Admittedly, however, this ‘is not to state any very precise criterion for determining the validity of impugned legislation’.[222] Defining the exact scope and content of the potential implied limitations, and balancing them against competing interests, requires judgments that necessarily receive little guidance from the text. The decisions involved are by no means as encompassing or unguided as those required to apply Deane and Toohey JJ’s putative guarantee of general legal equality, but they are significant nonetheless. Thus it is unsurprising that, even accepting the implied freedom of political communication, the decision to invalidate the political advertising scheme has been the subject of searching criticism.[223] Indeed, a paradoxical danger associated with being able to state guarantees in such shibbolethic terms is that the importance of competing interests tends to pale beside the rhetorical force of the new Implied Right.
The ‘political centrality’ factor is of no great significance in this context. Some of the issues encompassed by democratic guarantees will attract significant political controversy, such as restrictions on political advertising. Many other matters are of no great public concern, such as the prohibition of criticism of the Industrial Relations Commission at issue in Nationwide News.[224]
Overall, in light of the strength of the three positive constitutional imperatives, and given the nature of the textual foundation, the case for regarding a process-oriented doctrine of representative democracy as being incorporated within the Australian Constitution is compelling. The approach to representative democracy adopted by Mason CJ and (initially) Brennan J is analytically defensible and legally and normatively justified. The Constitution clearly requires that there be democratic procedures for the choice of parliamentarians. This aspect of the Constitution, in combination with the provisions entrenching responsible government, makes both the Parliament and the executive accountable to the people. An appropriate multi-provisional, incorporated doctrine approach would simply ensure that the essential conditions of the effective operation of these aspects of the democratic system are protected. The basic requirements of an effective democratic process are relatively clear. However, significant reasons for judicial restraint remain, such that some degree of deference is still appropriate when interpreting and applying these requirements.
It also follows from the above analysis that the inductive approach of Deane and Toohey JJ, and perhaps Gaudron J, should not be accepted. That approach has not yet been employed to deviate from a focus on process. Yet inductive doctrines, by their very nature, are less closely constrained by the text. The potential remains to seek to entrench some substantive, rights-protecting vision of liberal democracy within this method. Given the substantial legitimacy concerns that arise with an inductive approach, it should only be accepted when there is some clear justification.[225] Such an approach may be appropriate when the supporting provisions only make sense if understood as part of a broad and general doctrine, but the relevant provisions here relate to elections, choice and the system of government. These together establish a democratic governmental structure, which does not require explanation in broad and liberal terms. Democracy is, at its philosophical and historical core, a process of government involving a form of rule by the people. It is distinct from liberalism.[226] The three constitutional imperatives that found the case for incorporation are sufficiently fulfilled by the multi-provisional approach described.
The argument above has been made within the confines of orthodox Australian originalism. I would adopt the same conclusion were I to consider the matter within evolutionary originalism, for similar reasons. The additional evolutionary imperatives that might arise are sufficiently taken into account by another argument which can be made about the entrenchment of representative democracy. That argument treats the entrenched doctrine as involving a context-dependent criterion. The essential definition of what is entrenched remains constant: rule or ultimate control by the people, exercised through their elected representatives. Yet what conditions are necessary to sustain such democracy must be assessed in light of modern facts, practice, standards, values and preferences, and thus may change over time. But discussion of that aspect of the entrenched doctrine of representative democracy must wait for another day.[227]
[*] BA, LLB (Hons) (ANU), BCL, D Phil (Oxon); Barrister and Solicitor of the Supreme Court of New South Wales.
[1] (1992) 174 CLR 455 (‘Leeth’).
[2] (1992) 177 CLR 106 (‘Political Advertising Case’).
[3] [1992] HCA 46; (1992) 177 CLR 1 (‘Nationwide News’).
[4] Regarding the democracy cases, see, eg, the list gathered in George Williams, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’ [1996] MelbULawRw 6; (1996) 20 Melbourne University Law Review 848, 850, fn 13. With respect to Leeth, see, eg, Leslie Zines, ‘A Judicially Created Bill of Rights?’ [1994] SydLawRw 14; (1994) 16 Sydney Law Review 166, 180–4; Michael Detmold, ‘New Constitutional Law’ [1994] SydLawRw 18; (1994) 16 Sydney Law Review 228, 231–8, 248–9; Geoffrey Lindell, ‘Recent Developments in the Judicial Interpretation of the Australian Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 1, 35–9; Dennis Rose, ‘Judicial Reasonings and Responsibilities in Constitutional Cases’ [1994] MonashULawRw 9; (1994) 20 Monash University Law Review 195, 206–9, 212–13.
[5] Jeremy Kirk, ‘Constitutional Implications (I): Nature, Legitimacy, Classification, Examples’ [2000] MelbULawRw 26; (2000) 24 Melbourne University Law Review 645.
[6] [1997] HCA 27; (1997) 190 CLR 1, 44–5 (Brennan CJ), 63–8 (Dawson J, with McHugh J agreeing at 142), 112–13 (Gaudron J), 153–5 (Gummow J) (‘Kruger’).
[7] See Leslie Zines, The High Court and the Constitution (4th ed, 1997) ch 15.
[8] [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’).
[9] [1996] HCA 48; (1996) 186 CLR 140 (‘McGinty’).
[10] Ibid 234 (McHugh J).
[11] Ibid 169 (Brennan CJ), 188 (Dawson J), 234, 251 (McHugh J).
[12] [1997] HCA 25; (1997) 189 CLR 520, 556–7 (‘Lange’).
[13] See, eg, W Harrison Moore, The Constitution of the Commonwealth of Australia (1902) 328–9; Sir Owen Dixon, Jesting Pilate (1965) 101–2; Sir Robert Menzies, Central Power in the Australian Commonwealth (1967) 52–4; A-G (Cth) ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, 46 (Gibbs J) (‘McKinlay’); Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 43–4 (Brennan J); Political Advertising Case (1992) 177 CLR 106, 228–9 (McHugh J); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 159–60 (Brennan J).
[14] Political Advertising Case (1992) 177 CLR 106, 182–6; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272, 361–3 (‘Cunliffe’); Kruger [1997] HCA 27; (1997) 190 CLR 1, 61. Cf Theophanous [1994] HCA 46; (1994) 182 CLR 104, 166–70 (Deane J).
[15] For fuller expositions, see Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323.
[16] See, eg, Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.
[17] Geoffrey Kennett, ‘Individual Rights, the High Court and the Constitution’ [1994] MelbULawRw 4; (1994) 19 Melbourne University Law Review 581, 582.
[18] Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, 8 February 1898, 664–91. See J A La Nauze, The Making of the Australian Constitution (1972) 227–32.
[19] See Kirk, ‘Constitutional Interpretation’, above n 15, 354–7.
[20] Haig Patapan, ‘The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia’ (1997) 25 Federal Law Review 211, 226.
[21] Eg, Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, 8 February 1898, 678, 683, 687–9.
[22] Ibid 675, 682, 678.
[23] Ibid 665–6, 669, 686–7. Note John Williams, ‘Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the “14th Amendment”’ (1996) 42 Australian Journal of Politics and History 10.
[24] Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, 8 February 1898, 674.
[25] McKinlay [1975] HCA 53; (1975) 135 CLR 1, 24 (Barwick CJ); Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 182.
[26] Kruger [1997] HCA 27; (1997) 190 CLR 1, 61. Note also Theophanous [1994] HCA 46; (1994) 182 CLR 104, 201 (McHugh J).
[27] Illustrated in Kirk, ‘Constitutional Implications (I)’, above n 5, Part IV.
[28] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (first published 1901, 1976 ed) 958.
[29] See Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385–92.
[30] See Kirk, ‘Constitutional Implications (I)’, above n 5, Part III(A)(3).
[31] ‘General things or words do not derogate from special things or words’: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed, 1988) 83–4.
[32] A H F Lefroy, ‘The Commonwealth of Australia Bill’ (1899) 15 Law Quarterly Review 281, 286.
[34] The nature of this interpretational canon is explored further below: see below Part III(C).
[35] [1986] HCA 60; (1986) 161 CLR 556, 569 (Gibbs CJ), 636 (Dawson J); see also at 579 (Mason J), 615 (Brennan J). Similarly, regarding a purported implied right of free movement, see Pioneer Express Pty Ltd v Hotchkiss [1958] HCA 45; (1958) 101 CLR 536, 550 (Dixon CJ), 560 (Taylor J), 566 (Menzies J).
[36] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 81 (Deane and Toohey JJ); Political Advertising Case (1992) 177 CLR 106, 213–14 (Gaudron J).
[37] See below Part III(C).
[38] (1992) 177 CLR 106, 136.
[39] See s 4(1) of the Commonwealth Prisoners Act 1967 (Cth). The section was repealed by s 29 of the Crimes Legislation Amendment Act (No 2) 1989 (Cth).
[40] Leeth (1992) 174 CLR 455, 484.
[41] Ibid 485.
[42] Ibid 484, 486.
[43] [1992] HCA 46; (1992) 177 CLR 1.
[44] Ibid 69–71.
[45] Ibid 69.
[46] (1992) 174 CLR 455, 486.
[47] Ibid 485.
[48] Ibid 486–7.
[49] Ibid 486.
[50] Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
[51] Leeth (1992) 174 CLR 455, 486.
[52] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.
[53] Leeth (1992) 174 CLR 455, 484.
[54] See Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 137; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71; (1977) 139 CLR 54, 87–8; McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19; (1979) 144 CLR 633, 670; Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266, 311–12; Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238, 246; Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556, 581–3.
[55] (1992) 174 CLR 455, 468–9.
[56] Ibid 501–3.
[57] Ibid 475.
[58] [1912] HCA 96; (1912) 16 CLR 99, 108–10.
[59] Leeth (1992) 174 CLR 455, 467 (Mason CJ, Dawson and McHugh JJ), 489 (Deane and Toohey JJ). See also Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 371–2 (Gummow and Hayne JJ).
[60] [1997] HCA 27; (1997) 190 CLR 1.
[61] Aboriginals Ordinance 1918 (NT) ss 6–7, 16, 67.
[62] Kruger [1997] HCA 27; (1997) 190 CLR 1, 44–5 (Brennan CJ), 63–8 (Dawson J, with McHugh J agreeing at 142), 112–13 (Gaudron J), 153–5 (Gummow J).
[63] Ibid 94–7.
[64] Leeth (1992) 174 CLR 455, 485.
[65] Ibid 488.
[66] Ibid 489.
[67] Ibid 488.
[68] Personal characteristics are the central focus of the approach of the Canadian Supreme Court in relation to Canada’s equality guarantee in s 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11: Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143, 168–82; 56 DLR (4th) 1, 13–24; Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497, 523–4, 529–31, 547–52; 170 DLR (4th) 1, 19, 23–4, 37–41.
[69] Cf R v Turpin [1989] 1 SCR 1296.
[70] Eg, South West Africa (Ethiopia v South Africa; Liberia v South Africa) Cases (Second Phase) [1966] ICJ Rep 6, 305–9, 313 (Judge Tanaka, dissenting); Case ‘Relating to Certain Aspects of the Law on the Use of Language in Education in Belgium’ (Merits) (1968) 6 Eur Ct HR (ser A) 4, 34–5; Bilka-Kaufhaus GmbH v Weber von Hartz [1986] ECR 1607, 1628; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 510–11 (Brennan J), 571–4 (Gaudron J); Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 471–3 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ), 478–80 (Gaudron and McHugh JJ); re US law, see Laurence Tribe, American Constitutional Law (2nd ed, 1988) 1436–54.
[71] Leeth (1992) 174 CLR 455, 488.
[72] Ibid 489–90.
[73] Justice Learned Hand, The Bill of Rights (1958) 42.
[74] Peter Westen, ‘The Empty Idea of Equality’ (1982) 95 Harvard Law Review 537, 575.
[75] Eg, United States Department of Agriculture v Moreno[1973] USSC 169; , 413 US 528, 534 (1973); Romer v Evans, [1996] USSC 45; 517 US 620 (1996).
[76] Westen, above n 74, 596. See also H L A Hart, The Concept of Law (2nd ed, 1994) 159.
[77] City of Cleburne, Texas v Cleburne Living Center, [1985] USSC 191; 473 US 432, 446 (1985).
[78] Plyler v Doe, [1982] USSC 182; 457 US 202, 217 (1982).
[79] Since Skinner v Oklahoma, [1942] USSC 129; 316 US 535 (1942), explained in San Antonio Independent School District v Rodriguez, [1973] USSC 83; 411 US 1, 33 (1973).
[80] Craig v Boren, [1976] USSC 213; 429 US 190, 197 (1976); Plyler v Doe, [1982] USSC 182; 457 US 202 (1982).
[81] Eg, United States Department of Agriculture v Moreno[1973] USSC 169; , 413 US 528 (1973), regarding ‘hippies’; City of Cleburne, Texas v Cleburne Living Center, [1985] USSC 191; 473 US 432 (1985), regarding the mentally retarded; Romer v Evans, [1996] USSC 45; 517 US 620 (1996), regarding sexual orientation.
[82] Leeth (1992) 174 CLR 455, 466 (Mason CJ, Dawson and McHugh JJ), 472, 479 (Brennan J).
[83] Ibid 491.
[84] Ibid 490.
[85] Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ [1997] MelbULawRw 1; (1997) 21 Melbourne University Law Review 1, 17; Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 681–7.
[86] Kirk, ‘Constitutional Implications (I)’, above n 5, Part III.
[87] Ibid 662–3. See also below Part IV(B).
[88] Leeth (1992) 174 CLR 455, 484.
[89] [1997] HCA 25; (1997) 189 CLR 520, 566–7.
[90] See Kirk, ‘Constitutional Implications (I)’, above n 5, Parts III(B), III(C), IV.
[91] Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, 8 February 1898, 664–90. See further above Part I.
[92] Leeth (1992) 174 CLR 455, 485, fn 57.
[93] See Official Record of the Debates of the Australasian Federal Convention, Melbourne 1898, 8 February 1898, 667, 687–8.
[94] John Doyle, ‘Courts Unmaking the Laws — Commentary’ in Australian Institute of Judicial Administration, Courts in a Representative Democracy (1995) 143, 148.
[95] Albert Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) 193, cited in Leeth (1992) 174 CLR 455, 485.
[96] William Holdsworth, A History of English Law (1938) vol 10, 649, cited in Leeth (1992) 174 CLR 455, 485.
[97] See Rose, above n 4, 208.
[98] Leeth (1992) 174 CLR 455, 486.
[99] Ibid 485–6.
[100] Ibid 486.
[101] See Kirk, ‘Constitutional Interpretation’, above n 15, 346; George Winterton, ‘Popular Sovereignty and Constitutional Continuity’ [1998] FedLawRw 1; (1998) 26 Federal Law Review 1, 10–12.
[102] Leeth (1992) 174 CLR 455, 484.
[103] Note Goldsworthy, ‘Implications in Language, Law and the Constitution’, above n 25, 179.
[104] Leeth (1992) 174 CLR 455, 486–7.
[105] Kruger [1997] HCA 27; (1997) 190 CLR 1, 63, 67–8 (Dawson J).
[106] Pearce and Geddes, above n 31, 79; F A R Bennion, Statutory Interpretation: A Code (3rd ed, 1997) 968–75.
[107] Leeth (1992) 174 CLR 455, 485.
[108] See Kirk, ‘Constitutional Implications (I)’, above n 5, Part IV(C).
[109] Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, 94 (Stephen, Mason, Aickin, Wilson and Brennan JJ). See also, eg, Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 343 (Griffith CJ).
[110] Colquhoun v Brooks [1889] UKLawRpAC 43; (1888) 21 QBD 52, 65 (Lopes LJ).
[111] Gould v Brown (1998) 193 CLR 346, 481. See also Re Wakim; Ex parte McNally (1999) 198 CLR 511, 605 (‘Re Wakim’).
[112] See Kirk, ‘Constitutional Interpretation’, above n 15, 364–5.
[113] Ibid 350–4, 358–66.
[114] As confirmed in Re Wakim (1999) 198 CLR 511, 581 (Gummow and Hayne JJ).
[115] [1906] HCA 94; (1906) 4 CLR 488, 534.
[116] See further Kirk, ‘Constitutional Interpretation’, above n 15, 362–3.
[117] See Kirk, ‘Constitutional Implications (I)’, above n 5, Part IV(C).
[118] See above Part III(B).
[119] Kirk, ‘Constitutional Implications (I)’, above n 5, Part II(F).
[120] Kirk, ‘Constitutional Interpretation’, above n 15, 360.
[121] See Kirk, ‘Constitutional Implications (I)’, above n 15, Part II(F).
[122] Eg, Hersch Lauterpacht, An International Bill of the Rights of Man (1945) 115–16; South West Africa (Ethiopia v South Africa; Liberia v South Africa) Cases (Second Phase) [1966] ICJ Rep 6, 285–96 (Judge Tanaka, dissenting). Note also Theophanous [1994] HCA 46; (1994) 182 CLR 104, 174 (Deane J).
[123] See, eg, Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Sex Discrimination Act 1994 (Tas); Equal Opportunity Act 1995 (Vic); Equal Opportunity Act 1984 (WA).
[124] [1992] HCA 23; (1992) 175 CLR 1, 42.
[125] See above Part II(B).
[126] See Kirk, ‘Constitutional Implications (I)’, above n 5, Part IV(C).
[127] Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341, 343. Gleeson CJ was indicating that the High Court’s jurisdiction under s 75(v) of the Constitution does not extend to merits review.
[129] [1992] HCA 46; (1992) 177 CLR 1.
[130] Ibid 48.
[131] [1994] HCA 46; (1994) 182 CLR 104.
[132] [1996] HCA 48; (1996) 186 CLR 140.
[133] [1997] HCA 25; (1997) 189 CLR 520.
[134] Ibid 569
[135] Ibid 568.
[136] Ibid 559.
[137] Ibid 557; see also 559.
[138] Acknowledged and developed, eg, in Kruger [1997] HCA 27; (1997) 190 CLR 1, 91–3 (Toohey J), 115–18, 126–7 (Gaudron J), 142 (McHugh J).
[139] Kirk, ‘Constitutional Implications (I)’, above n 5.
[140] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 199–201 (McHugh J, Dawson J relevantly agreeing at 189). See also McGinty [1996] HCA 48; (1996) 186 CLR 140, 269 (Gummow J).
[141] McGinty [1996] HCA 48; (1996) 186 CLR 140, 285; see also at 284, 272. See similarly Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 70–1 (Deane and Toohey JJ).
[142] Political Advertising Case (1992) 177 CLR 106, 137 (Mason CJ); McGinty [1996] HCA 48; (1996) 186 CLR 140, 201 (Toohey J). See similarly Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 70 (Deane and Toohey JJ).
[143] For reasons I have given elsewhere: Jeremy Kirk, ‘Administrative Justice and the Australian Constitution’ in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and the Fringe (2000) 78, 99–101.
[144] Kirk, ‘Constitutional Implications (I)’, above n 5.
[145] Political Advertising Case (1992) 177 CLR 106, 187.
[146] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 189.
[147] Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302, 324–5.
[148] Political Advertising Case (1992) 177 CLR 106, 184. Cf Cunliffe (1994) 182 CLR 290, 360.
[149] Political Advertising Case (1992) 177 CLR 106, 187.
[150] [1996] HCA 43; (1996) 186 CLR 302, 324–7.
[151] See Political Advertising Case (1992) 177 CLR 106, 188–91 (Dawson J).
[152] Ibid 227–33.
[153] Ibid 227.
[154] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 205–6.
[155] Political Advertising Case (1992) 177 CLR 106, 137 (Mason CJ); Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 46–7 (Brennan J).
[156] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 47 (Brennan J).
[157] Political Advertising (1992) 177 CLR 106, 134–5, 138–41 (Mason CJ); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 121 (Mason CJ, Toohey and Gaudron JJ), 149–50 (Brennan J).
[158] Eg, Zines, The High Court, above n 7, 379, 392.
[159] (1992) 177 CLR 106, 208–13.
[160] Ibid 210.
[161] Ibid 212.
[162] See above n 54 and accompanying text.
[163] Political Advertising Case (1992) 177 CLR 106, 212, fnn 5–6.
[164] Jeremy Kirk, ‘Constitutional Implications from Representative Democracy’ [1995] FedLawRw 2; (1995) 23 Federal Law Review 37, 44–6.
[165] Note especially her textually based argument, as opposed to Toohey J’s inductive judgment, in McGinty [1996] HCA 48; (1996) 186 CLR 140, 190–216. Cf Muldowney v South Australia (1996) 186 CLR 352, 376–7 (Gaudron J).
[166] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 69–70.
[167] Ibid 73.
[168] Ibid 71.
[169] [1996] HCA 48; (1996) 186 CLR 140, 198–204, 210–12.
[170] Ibid 194–7.
[171] Ibid 182–8.
[172] Ibid 168–71.
[173] Ibid 291; cf at 269–70, 272–3, 284–5, 286–8.
[174] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 196; McGinty [1996] HCA 48; (1996) 186 CLR 140, 231–2.
[175] McGinty [1996] HCA 48; (1996) 186 CLR 140, 233 (McHugh J), 168 (Brennan CJ).
[176] [1994] HCA 45; (1994) 182 CLR 211.
[177] McGinty [1996] HCA 48; (1996) 186 CLR 140, 251 (McHugh J).
[178] Ibid 232 (McHugh J); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 202 (McHugh J).
[179] [1996] HCA 48; (1996) 186 CLR 140, 169; note also 188 (Dawson J) and Ditchburn v Divisional Returning Officer [1999] HCA 41; (1999) 165 ALR 151, 160 (Hayne J).
[180] Lange [1997] HCA 25; (1997) 189 CLR 520, 557.
[181] Ibid 557–9.
[182] Ibid 567.
[183] Ibid 559–60.
[184] Ibid 561, 567.
[185] Ibid 557–8.
[186] [1997] HCA 27; (1997) 190 CLR 1, 89–91, 94–7.
[187] In relation to the former two doctrines, see Kirk, ‘Constitutional Implications (I)’, above n 5, Part IV; in relation to the separation of judicial power, see Jeremy Kirk, ‘Implied Rights’ in Constitutional Adjudication by the High Court of Australia since 1983 (D Phil thesis, Oxford University, 1998) ch 6.1.1.
[188] Adrienne Stone has made a parallel critique by reference to the specific issue of formulating a test for the legitimate restriction of political communication: Stone, above n 85, 674–5, 698–700.
[189] Suggested in McKinlay [1975] HCA 53; (1975) 135 CLR 1, 21 (Barwick CJ), 44 (Gibbs J), 61 (Mason J).
[190] Acknowledged in the Political Advertising Case (1992) 177 CLR 106, 230–1 (McHugh J).
[191] Cf Jeffrey Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue’ [1997] MonashULawRw 22; (1997) 23 Monash University Law Review 362, 373–4.
[192] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 196–7.
[193] Eg, Political Advertising Case (1992) 177 CLR 106, 229–30 (McHugh J); McGinty [1996] HCA 48; (1996) 186 CLR 140, 169 (Brennan CJ); Lange [1997] HCA 25; (1997) 189 CLR 520, 557.
[194] See further Kirk, ‘Constitutional Implications (I)’, above n 5, Part III(C)(3).
[195] Cunliffe [1994] HCA 44; (1994) 182 CLR 272, 360 (emphasis added). See also Theophanous [1994] HCA 46; (1994) 182 CLR 104, 190 (Dawson J).
[196] [1997] HCA 25; (1997) 189 CLR 520, 557 (emphasis added).
[197] Cf McGinty [1996] HCA 48; (1996) 186 CLR 140, 291 (Gummow J); Nicholas Aroney, ‘A Seductive Plausibility: Freedom of Speech in the Constitution’ [1995] UQLawJl 6; (1995) 18 University of Queensland Law Journal 249, 264–7.
[198] Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[199] See the sections listed in above Part IV(B) in relation to the argument of Mason CJ and Brennan J.
[200] Eg, Lange [1997] HCA 25; (1997) 189 CLR 520, 557, 560–1.
[201] Kirk, ‘Constitutional Implications (I)’, above n 5, Part II(F).
[202] Ibid Part IV(C).
[203] Goldsworthy, ‘Implications in Language, Law and the Constitution’, above n 25, 179–82; Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech’, above n 191, 371–4.
[204] Eg, Political Advertising Case (1992) 177 CLR 106, 182–6.
[205] Geoffrey Sawer, ‘Implication and the Constitution’ (1948) 4 Res Judicatae 15, 19–21, 85, 89–91.
[206] Jeremy Kirk, ‘Rights, Review and Reasons for Restraint’ [2001] SydLawRw 2; (2001) 23 Sydney Law Review 19, 23–4.
[207] Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech’, above n 191, 372.
[208] Zines, ‘A Judicially Created Bill of Rights?’, above n 4, 177.
[209] (1986) 7 NSWLR 372, 405 (NSWCA). See also Durham Holdings Pty Limited v New South Wales (2001) 177 ALR 436, 454 (Kirby J).
[210] See above Part II.
[211] See Kirk, ‘Rights, Review and Reasons for Restraint’, above n 206.
[212] Implied in Theophanous [1994] HCA 46; (1994) 182 CLR 104, 172–3 (Deane J).
[213] Implied in Kramer v Union Free School District No 15[1969] USSC 151; , 395 US 621, 627–8 (1969).
[214] John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) ch 4.
[215] Robert Bork, ‘Neutral Principles and Some First Amendment Problems’ (1971) 47 Indiana Law Journal 1, 23, 26; Michael Walzer, ‘Philosophy and Democracy’ (1981) 9 Political Theory 379, 384; Allan Hutchinson and Patrick Monahan (eds), The Rule of Law: Ideal or Ideology? (1987). Cf Jeremy Waldron, ‘A Rights-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 39–41.
[217] Moore, above n 13, 327–8.
[218] Quick and Garran, above n 28, 418–19.
[219] Laurence Tribe, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 89 Yale Law Journal 1063, 1064, 1067–72; Ronald Dworkin, ‘The Forum of Principle’ (1981) 56 New York University Law Review 469, 502–10; Paul Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990) 101.
[220] Henry Mayo, An Introduction to Democratic Theory (1960) 142.
[221] See generally Kirk, ‘Constitutional Implications from Representative Democracy’, above n 164. See in particular the long list of those who agree on such basic conditions at 50, fn 98.
[222] Political Advertising Case (1992) 177 CLR 106, 149 (Brennan J).
[223] Eg, Deborah Cass, ‘Through the Looking Glass: The High Court and the Right to Speech’ (1993) 4 Public Law Review 229; Gerald Rosenberg and John Williams, ‘Do Not Go Gentle into That Good Right: The First Amendment in the High Court of Australia’ [1997] Supreme Court Review 439.
[224] [1992] HCA 46; (1992) 177 CLR 1.
[225] Kirk, ‘Constitutional Implications (I)’, above n 5, Part III(B)(3).
[226] Kirk, ‘Constitutional Implications from Representative Democracy’, above n 164, 44–9.
[227] See Kirk, ‘Implied Rights’ in Constitutional Adjudication, above n 187, ch 7.2. The argument is relied on, but developed only in brief, in Kirk, ‘Constitutional Implications from Representative Democracy’, above n 164, 50.
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