Resisting liberalism: social democracy and the Australian constitution

Abstract

This dissertation seeks to develop a distinctive and contemporary social democratic approach to the Australian Constitution. In particular, it aims to determine how much room there is to manoeuvre for social democratic theorists and practitioners within the present confines of the constitutional framework. As part of this objective, the thesis develops a new and unconventional social democratic approach to constitutional theory and practice which challenges the dominant liberal paradigm that presently underpins contemporary constitutional discourse.Social democracy has traditionally been closely associated with an “aspirational” or “populist” paradigm in which the institution of judicial review has been perceived to constrain the reformist possibilities of the legislature. The principal concern of this thesis is to challenge this “aspirational” approach and to reinstate the judiciary (and the institution of judicial review) into a contemporary social democratic framework. The thesis, therefore, seeks to shift the focus of attention in social democracy from the parliamentary to the judicial realm and (in doing so) explores the social democratic possibilities that inhere in the processes of judicial interpretation and constitutional review. In canvassing the (unrealised) transformative potential of the judiciary the dissertation draws upon case studies relating to the various State constitutions of the United States and the Constitution of South Africa (1996) as examples where judicial review has been used as a mechanism through which to activate or promote more progressive agendas. As the dissertation will attempt to demonstrate, the relationship between social democracy and judicial review (and the justiciable constitution) would now seem to be more complex and (more) subtle than what has, indeed, previously been thought. There are clearly circumstances where the judicial process can be used to promote social democratic agendas and to effectuate more progressive outcomes — particularly in those cases where Parliament is pursuing liberal political programmes.In exploring the possibilities which inhere in the judiciary, the thesis also considers the difficult and complex issue concerning the precise extent to which social democratic principles and objectives (such as welfare and equality) can be effectively realised or implemented through judicial and constitutional processes. An underlying concern of the dissertation, in particular, is to determine whether the traditional social democratic commitment to ameliorating economic inequality and to promoting social reform is, in fact, essentially “justiciable” or susceptible to judicial enforcement and implementation. The question needs to be asked as to whether the social democratic concern with effecting underlying structural and institutional reform is inherently less capable of judicial implementation and, therefore, more appropriately pursued in the political or parliamentary spheres. In this respect, then, while seeking to develop an important institutional role for the judiciary (and judicial review) the dissertation also draws attention to the limits that inhere in the judicial process and the difficulties associated with “judicialising” and “constitutionalising” social democratic principles.The distinctive social democratic constitutional model developed in the first part of this dissertation is then applied to the various institutional features of the Australian Constitution including the federal structure, the institution of judicial review, the rights provisions, the federal heads of power and the separation of powers. The early chapters of the thesis, therefore, provide the theoretical basis for the concrete and more empirical discussion that follows in the remaining sections of the dissertation. Consideration will be given to developing new, creative and dynamic interpretations of the federal powers; to formulating innovative and transformative approaches to the Australian federal constitutional structure; to constructing an essentially more flexible understanding of, or approach to, the Australian constitutional separation of powers; and to ascertaining whether, indeed, the precise terms and structure of the Australian Constitution enshrines or instantiates social democratic philosophical principles upon which a (new) contemporary progressive constitutional and political practice could be developed. The dissertation, then, is oriented to determining the precise extent to which the Australian Constitution provides room for the development of a renewed contemporary social democratic practice and, therefore, seeks to make an important contribution to the existing research into social democracy by constitutional theorists and practitioners on the Left.In short, there is an important need within constitutional theory and practice for the development of an alternative and unconventional social democratic model — one which challenges the more restrictive attributes of the dominant liberal paradigm which presently underpins constitutional discourse. In this respect, the primary aims of this thesis will be to demonstrate that a coherent social democratic paradigm can be marshalled from the extant constitutional (theoretical) literature and that there is room to manoeuvre within the constraints of the Australian Constitution for pursuing a more distinctive social democratic agenda.