The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia

Abstract

This paper addresses the following questions in the context of the convention debates and the drafting of the Constitution: On what basis did the founders include specific rights in the Constitution? What was their understanding of these rights? What sorts of rights were excluded and for what reasons? The first part of the paper locates the specific rights that were proposed to be entrenched into the Constitution in the context of the prevailing Australian constitutionalism and the innovation that was federalism. The second part turns to the federation debates and the founders' discussions of the rights provisions to ascertain their understanding of these rights and of the notions of progress, freedom and liberalism implicit in such understanding. In its concluding part the paper will consider the extent to which the founders' notion of liberalism would favour the Court's principles of constitutional interpretation and implied rights.