Australia’s Constitutional Rights and the Problem of Interpretive Disagreement

Abstract

The rights found in the Australian Constitution are regarded as patchy, inconsistently interpreted and, in the case of ‘implied’ rights, obscure.1 The inadequacy of Australia’s constitutional rights is frequently one plank in an argument for an Australian bill of rights.2 In this article, I subject Australia’s constitutional rights to closer scrutiny. My point is three-fold. First, I seek to broaden the understanding of how rights pervade, or could pervade, Australian constitutional law. Secondly, I reexamine the critique of Australia’s constitutional rights. I agree with the conclusion that Australia’s constitutional rights are especially weak, but I provide a more precise articulation of the source of that weakness. Finally, I briefly consider the implications of this analysis in deciding whether Australia should adopt a constitutional bill of rights. I begin, in Part 2, with a brief review of Australia’s existing constitutional rights. The analysis extends beyond the express and implied rights that form the backbone of Australia’s constitutional rights to less obvious means of rights protection found in apparently right-neutral contexts. In this latter section, I show how the High Court can pursue rights protection through the use of rights-sensitive interpretive devices and judicially created rules for the application of constitutional provisions. In Part 3, I assess the claim that Australia’s constitutional rights are an especially weak form of protecting rights. I will argue that a system of rights protection that depends so heavily on the implication of rights, on the incorporation of rights from extra-constitutional sources and other judicially created rules of constitutional law, is inevitably weak. The source of this weakness lies in the contested nature of constitutional interpretation itself. Because the methods of constitutional interpretation on which Australia’s constitutional rights rely are themselves contested, many of these rights are subject to an on-going disagreement as to their very existence. The doubt that attends the use of these methods is exacerbated when they are used in the context of a written constitution that deals primarily with non-rights concerns and was drafted without much consideration of rights. Arguments based on constitutional text and constitutional history will tend to run counter to rights-protective readings of the Constitution. In many cases, then, Australia’s constitutional rights are likely to be accompanied by disagreement about the methods of constitutional interpretation on which they rely. Such rights are therefore peculiarly vulnerable to judicial revision in the short term. Further, even when a right obtains a degree of acceptance over time, doubts surrounding its recognition will adversely affect its development. I conclude with some brief reflections on the implications of these conclusions for the Australian bill of rights debate. It follows from my analysis in Part 3 that an express bill of rights in the Australian Constitution would put to rest one important area of dispute, by providing an unarguable basis for the recognition of constitutional rights. However, I suggest that the settling of that interpretive controversy is not, itself, a reason to adopt a bill of rights, because such a reform would, overall, make constitutional adjudication considerably more complex and uncertain.